England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE JOHNSON

		Royal Courts of Justice Strand London WC2 Tuesday, 13th March 2001

Tuesday, 13th March 2001

1. LORD JUSTICE THORPE: This is Mr T's application for permission to appeal a judgment delivered by Johnson J on 23rd February sitting in Norwich. The proceedings between the parents of these two children G, twelve, and T, seven, have been as bitter and as extensive as it would be possible to imagine. They have been conducted in Spain. They have been conducted in Gibralter. They have been conducted under the terms of the 1988 Convention. They have been conducted in wardship in this jurisdiction. The case has been to the Court of Appeal substantively in April 2000 and there have been a number of applications either for a stay or for permission in more recent times.
2. The hearing before Johnson J in Norwich was intended to be a hearing of fundamental importance. He gave four days to hearing the evidence. He had the opportunity to assess the mother and the father at length both in the witness box and in the well of the court. He had the advantage of representation for the children by the official solicitor, who instructed experienced counsel and also an experienced consultant child and adolescent psychiatrist. The judge only remarked that he was to some extent handicapped since many of the factual issues in dispute took place in Spain, which would obviously have been the appropriate court of trial with the availability of the crucial local witnesses. However, having noted the deficit that he suffered, he said:

"... the conclusions which I have reached on the balance of probabilities are conclusions about which I have, at the end of this hearing, very little doubt."

3. He defines the principal issue for his investigation and decision as follows:

"What does seem to me to be important is that I should make findings, as clearly as I feel are justified by the evidence, relating to the major issue as to whether throughout this period the mother was drinking in the way described by the father."

4. Much later in his judgment, having reviewed the material evidence, he said:

"It has become increasingly apparent to me during this hearing, particularly having regard to the evidence and the manner of the evidence both of the mother and of the father, that on the issue of alcohol the father's case is false, and I unhesitatingly on this issue accept the evidence of the mother."

5. That was not the only criticism that he made of the father. Perhaps the most serious was expressed at page 20, of his judgment, when he said:

"What seems to me to have been totally unforgivable was the sustained attacks by the father to turn G into an active supporter of his case against the mother."

6. He reviewed the evidence and the recommendation advanced by the Official Solicitor and expressed his initial misgiving at the Official Solicitor's' suggestion that these two children should be moved from father to mother after a settled period that constituted almost two years of unbroken care. However, he said that those misgivings evaporated when Dr Lucy gave evidence. He said that he was impressed by the manner in which she gave evidence and was particularly impressed by the way in which she responded to the father's questions. He recognised the uncertainty and the difficulty that would inevitably follow in the implementation of the Official Solicitor's recommendation but nonetheless he adopted it as his disposal order.
7. Mr T has said everything that could be said in support of this application for permission. With the aid of the Citizens Advice Bureau he has put before me an extremely well-ordered application and he has, this afternoon, supplemented it with an additional folder containing documents and statements relating not only to the period prior to judgment but also to the period post-judgment. In his oral submission he has emphasised the huge pain that the judge's order has brought to him and, as he perceives it, to both of the children. T has been moved but not without the intervention of the tip-staff and is now living with his mother in North London in circumstances which Mr T characterises as inadequate and completely alien to all his previous experience of life. G remains totally opposed to the judge's solution. An endeavour to obtain her transfer has, he tells me, resulted in the intervention of the Chief Probation Officer and a hearing in front of Hogg J.
8. However, the question that I have to pose is: Was Johnson J plainly wrong as Mr T has asserted? Is there any evidence that the solution that he adopted was adopted out of a desire to deny Mr T the benefit of his abduction of the children from Spain again as Mr T asserts? The simple answer is that there is not the slightest indication of such an improper rationalisation within the judgment nor could it be said in this Court that the judge was plainly wrong. He had the responsibility of making findings as to credit, as to fact, as to reliability and as to the worth of expert opinion. That is the function of the trial judge. In a very difficult case Johnson J discharged those responsibilities with conscientious care. He may, with the passage of time, be proved to be right or wrong. But the question is not what evaluation may hereafter be made with the advantage of hindsight; the question that has to be asked is were the conclusions open to him on 23rd February on the foundation of his findings of fact and assessment of the relevant witnesses? The answer to that question can only be yes.
9. Accordingly, this Court has neither the function nor the right to interfere. This Court is a court of review and is not entitled to substitute its own opinion or its own discretion for the opinion or discretion of the trial judge. Our only function is to intervene to correct manifest errors. Mr T has demonstrated none in the court of trial, although I recognise how intensely he feels for his children and how impossible it is for him subjectively to accept the harsh criticisms and hard findings made by the judge at trial. But that is a situation that brings many litigants to this Court with applications for permission. Were we to grant applications for permission only on that basis, we would eventually be doing no more than to undermine and subvert the process of trial which is intended to be the process by which these very difficult family problems have to be resolved.
10. I am comforted to know that the difficulties of implementation and the problems created thereby are listed for review before Johnson J on, I think, Monday of next week. So any of the post-judgment issues that Mr T has referred to this afternoon, will at least fall for review in the court of trial on that early date. For all those reasons this application for permission is refused.
(Application for permission refused)