England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WILLESDEN COUNTY COURT
(HIS HONOUR JUDGE KRIKLER)

		Royal Courts of Justice Strand London WC2 Monday, 12th March 2001

Monday, 12th March 2001

1. LORD JUSTICE THORPE: This is Mr C's application for permission to appeal an order made by His Honour Judge Krikler sitting in the Willesden County Court on 6th December 2000. Mr C was not represented. He had an application for Legal Aid which was undetermined. His wife was represented by solicitor and counsel. The issue that the judge decided was where the only child of the marriage, S, should live, pending a full investigation after the preparation of a Court Welfare Officer's report.
2. S was born on 25th January 1990, and was accordingly almost 11 years of age at the time of that hearing. The separation had occurred in the previous summer, and in the interim S had remained at the final matrimonial home with the father until an incident on 26th November which the father characterises as a theft of the child achieved by a failure to return at the conclusion of a contact visit.
3. At the hearing in front of the judge the father sought an adjournment in order that he should be equally represented. The judge refused that. The judge went on to hear the issue on what was undoubtedly a somewhat perfunctory basis before making an order that the mother should have interim residence upon her undertaking to ensure that S attends her Greek classes on Friday evening. He also said that the father should have contact every Saturday, all day, and every Wednesday for the evening after school. What he did not permit, and arguably should have permitted, was staying in contact with the father in the interim.
4. However, the order that he made was reasoned. It seems that the recording facilities in Willesden were not operating on 6th December, so that all I have is the note taken by Miss Whippman, who represented the mother, but that note has been signed by the judge as approved and, accordingly, I take it that it is a reasonably reliable summary of what the judge said.
5. The judge expressed some concerns about the emotional climate that the dispute had generated. He held that it was important that S should be protected from that. He emphasised that he needed the help of a Court Welfare Officer and anticipated that that would take about 12 weeks to prepare. He therefore directed himself that he was deciding what should happen in that interim period, and that his decision had to be governed by S's welfare as the paramount consideration. He did emphasise that whatever he decided for the ensuing weeks was purely interim and without prejudice. The note reads:

"The decision I make today is for a limited period. It may be in S's best interests to stay with her father in the long term. I know not."

6. The application today has been supported by draft grounds and a skeleton argument, all impeccably prepared and presented by the father. This morning he has handed in a three-page skeleton argument which he has very helpfully agreed for me to read to myself slowly and carefully, and I have done that. The document is now handed in and on the Court file.
7. Mr C has an understandable feeling that he was outgunned and perhaps outmanoeuvred on 6th December. He feels that there was no equality of arms since his wife was represented by solicitor and counsel. The wife is herself a member of the bar of some 15 years call. He urges that there has been a fundamental breach or violation of his rights under the European Convention. I can well understand that that must be the appearance to him when the outcome on 6th December was so far removed from what he desired, but the test has to be not viewed only from the standpoint of the father's rights but also regard must be had to the mother's right, to a determination of her application, and above all regard must be had to S's right to a judgment and an order of the Court that would put paramount, and unquestionably paramount, her welfare and her protection. So if that wider review is undertaken it is, in my opinion, impossible to say whether there has been any violation of human rights, for all that the judge was doing was holding the ring until there could be a full trial.
8. I have been reassured to hear from Mr C that although there has been slippage, although the Court Welfare Officer has proved incapable of meeting the judge's timetable, still the Court Welfare Officer had the interview with the father on 20th February and has said that the report will be filed by the end of March. I have also been told by Mr C that although the hearing date originally fixed by the judge, seemingly, for 6th February has had to be vacated but, at least there is a fixture in the Court calendar he thinks for 5th May although he is not sure of the date.
9. What this case plainly needs is a full hearing with the advantage of the Court Welfare Officer's report and where, hopefully, both parties will have the advantage of legal representation. Mr C has explained to me that there has been a special investigation of his financial circumstances, but it seems that that is now complete and the way clear to a determination of his application for representation. The reality is (and I have tried to explain this to Mr C), that his relationship with his daughter can only be restored by a proper merit investigation in the county court. That will lead either to his daughter's return to him as primary carer or, alternatively, to the enlargement of the present contact arrangements. That seems a prediction that I can make with reasonable confidence. That hearing is guaranteed to him, barring the unforeseen, in about three weeks' time. Were I to grant him permission, the consequence would be that that hearing would be lost and appellate proceedings could only lead to delay even were he to establish some sort of right of re-hearing.
10. This is in truth a hopeless application for permission although I fully understand why Mr C, with his strong feelings and with only his layman's appreciation of how the system works, believes otherwise. But I could not possibly grant permission in this case and must refuse it.
(Application dismissed)