England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND AN EXTENSION OF TIME

		Royal Courts of Justice Strand London WC2 Monday, 5th November 2001

1. LORD JUSTICE WARD: This is an application by Mr Egbaiyelo for permission to appeal against the orders made by His Honour Judge Coningsby QC in the Croydon County Court on 31st May 2001.
2. The judge made three orders. The first was:

"1. Upon the mother supplying to the father today with the addresses of the children's school and having previously given the residential address of the children the father's application the Family Law Act 1996 Section 33 is dismissed."

3. I will deal with that first. The father's complaint is that the address given by the mother was the address in London, that, as he has since established, she has moved and has an address in Mowbray Road, Cambridge. That appears from the evidence of an enquiry agent at pages 297 and 298 of the bundle. Since he knows now where the children are residing, to pursue an appeal against this part of the order seems to me to be wholly academic and to serve no good purpose whatsoever. I shall not give permission to appeal that order.
4. The second order which the applicant seeks to appeal reads as follows:

"2. Upon the father's indication of a wish to appeal against the order of District Judge Fink dated 3/8/2000 (dismissing his application for an occupation order under the Family Law Act 1996[)] and against the order of District Judge Parker dated 10/5/2001 dismissing his further application for ancillary relief (by way of an order of transfer of tenancy) the court treats the father as making an application for permission to appeal and each of those applications is now dismissed."

5. I had for a time persuaded myself that the judge was applying Section 54 (4) of the Access to Justice Act in dealing with the matter in that way and, having refused permission to appeal the two district judge's orders, that was the end of the matter and this court has no power to reconsider the matter. That view of mine is probably wrong because that position does not apply in family proceedings by virtue of paragraph 2.2 of the practice direction under the Civil Procedure Rules.
6. What is at heart in this part of the case is simply this. The father contends that he should be given a transfer of the tenancy of the London property because, he says, the mother is no longer living there but living in Cambridge. If therefore he can get the London property he will have a home for himself - and he is now homeless - and have a benefit he does not have at the moment. There will be no disadvantage to the mother because she is living in some other property in Cambridge. If he is adequately housed he will have somewhere where he may have contact to his children. I see the force of that submission. It does not appear that the judge did, possibly because if the note of the way the case came before him is accurate - supplied by counsel for the mother - the judge dealt with this in the most summary way. He certainly gave no reasoned judgment for his conclusions and he could be subject to criticism for that reason alone. But if the merits are as Mr Egbaiyelo submits to me they are he will have a reasonable prospect of success on the merits.
7. I was inclined therefore to give permission to appeal paragraph 2 of the order. I do not do so in order to give this court a clear opportunity to explain to circuit judges when Section 54 (4) of the Access to Justice Act 1999 applies and when it does not. I will adjourn the application for permission to appeal so that that matter may be ventilated an dproper judgment of the full court given on it for the guidance to circuit judges generally.
8. Paragraph 3 of the order of Judge Coningsby dismissed the father's application for a residence order as having no realistic chance of success. It had no realistic chance of success because the father was homeless. If he obtains a transfer of the London tenancy he will have a home and that will improve his prospects of success. So that application, too, appears to me now to have reasonable prospects of success.
9. I will adjourn the matter to be considered on notice to the mother.
10. The same applies to the way the judge dealt with contact when he gave no real reason but accepted the proposals for visiting contact at a contact centre as proposed by the mother.
11. In summary therefore the application for permission to appeal paragraph 1 is dismissed but I adjourn the applications to appeal paragraphs 2, 3 and 4 to be heard on notice to the mother.
12. I conclude by saying this. The chronology makes the most depressing reading. I have not counted up how many times these parties have been before the court since the proceedings began with a divorce petition in March 1999. The chronology runs for three and a half pages; that tells its own totally lamentable tale of a failure by this mother and father to deal with the breakdown of their marriage in a proper, constructive way without this appalling waste of court time and money. These children are now aged as follows: Samuel is already 16 years so no effective order can be made in respect of him; David is now 12 and Emmanual is now 7½. I would have thought that before we go any further in this case the parties should invite the court mediation service to bring some common sense to bear in these parties' lives. If there are two homes, and a London home is still available, the mother will have to put up convincing reasons why it should not be transferred to the father if it is available and, if it is, whether some satisfactory arrangement can be made for contact to the children. I am going to recommend that there be some attempt at mediation in addition to standing the case over in general.
13. A copy of this judgment can be provided at public expense and made available to both parties. The case is not to be relisted until the parties have indicated whether or not they are prepared to take up the mediation process. To protect his position Mr Egbaiyelo had better notify the landlord that he may still have a chance to seek a transfer of the tenancy of the property in the hope that the tenancy is still available for transfer.
Order: Application adjourned to be listed before two Lords Justices with the appeal to follow if permission granted. Reserved to Lord Justice Ward