England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LEICESTER COUNTY COURT
(HIS HONOUR JUDGE MAYER QC)

		Royal Courts of Justice Strand London WC2A 2LL Friday 21 December 2001

1. LORD JUSTICE THORPE: Mrs Allingham-Nicholson applies on behalf of the applicant/father to appeal the decision of His Honour Judge Mayer QC given in the Leicester County Court on 27 September 2001. One of her criticisms of the judge is that before the short adjournment he indicated his readiness to make an order for contact every third weekend with a review. The father was not ready to assent to that and instructed Miss Allingham-Nicholson to persist in her submission that there should be contact every other weekend. The case was continued after lunch.
2. The mother, in person, advanced the rival contention that there should be contact once every two months. The judge dealt with it in a very short judgment saying:

"I think for him to spend every other weekend away from his home would be too much. On the other hand, I think contact every 2 months would be too remote. I feel that the answer lies somewhere in between. Doing the best that I can to fulfil the objectives which I have set out already and to serve, as best I can, the long term welfare of the child, I have concluded that the proper order for the court to make is that there will be contact 1 weekend in every 4."

3. I do not think that conclusion, reasoned as it is, is open to criticism in this court. Mrs Allingham-Nicholson has suggested that the judge should have explained why he shifted his mind over the lunch adjournment. Perhaps as a matter of presentation it would have eased the father's sense of disappointment, but, clearly, in my opinion it was not incumbent on Judge Mayer to explain why he reached a final conclusion that differed from his provisional one.
4. There is one aspect of the case which causes me some slight anxiety. The judge effectively gave the mother a veto over such other contact. The only contact beyond the one weekend in four, was for two hours every Christmas Day. The judge then made the following provision:

"No additional staying contact during school holidays, save by agreement between the Mother and Father."

5. Mrs Allingham-Nicholson tells me that the mother has since refused to agree any holiday contact. She says that if she were to go back to court she might be listed in front of some other judge who might say that the previous order provides no contact save by agreement. That has not been appealed and must at least, therefore, be the starting point. I see some force in that. On that ground, I would, with some hesitation, be prepared to grant an adjourned hearing on notice with appeal to follow.
6. Mrs Allingham-Nicholson has produced this morning an entirely fresh point, nowhere to be found in her notice of 10 October 2001. Solicitors instructing her wrote a letter to the primary school where the child was thought to attend, only to receive a letter in early November informing them that the child had been removed from the school on 21 September 2001. It appears that the mother ran a case in the court below on the basis that she and the child were well settled in Leicester, that her family were also Leicester people and that part of her need for the child at weekends was to participate in the life of the maternal extended family.
7. Miss Allingham-Nicholson says that, in reality, the mother and the child had moved to Birmingham prior to the hearing, a fact that was concealed from the judge. If that fact can be made good, obviously the likelihood is that this court would hold the proceedings in the court below invalid. Plainly, Mrs Allingham-Nicholson has to do the paper work to bring this additional point before the court by amending her grounds, and, maybe, by seeking leave to adduce fresh evidence.
8. I am going to extend time to grant her leave to amend her notice and grant her leave to adduce fresh evidence. I will adjourn this application for permission to be heard on notice with appeal to follow if permission granted. I would give it a time estimate of two hours and say it should be in front of a two-judge court. I would hope it can be listed some time relatively early in the new year.
Order: As indicated. Assessment of public funded applicant's costs.