England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
(DISTRICT JUDGE FREEMAN)

		Royal Courts of Justice Strand London WC2 Friday, 6th April 2001

Friday, 6th April 2001

1. LORD JUSTICE WARD: This came before me earlier day as an application by Mr J for permission to appeal the directions made by District Judge Freeman sitting as a recorder on the 27th February 2001. He refused the father's application to have the first Court welfare officer attend for cross-examination. He directed the second Court welfare officer to attend and to file any addenda he felt appropriate. He dismissed the father's application to call a number of witnesses, and although it does not appear on the order he probably also refused to give the discovery, which the father sought, of the underlying medical reports referred to in the report of Dr Lesley Faith which is before the Court and also for the production of a letter from Mrs Bennet referred to in the Court welfare officer's report made by the first Court welfare officer.
2. Mr Jackson is in a state of considerable uncertainty as to how best he can act to promote the welfare of J, the five-year-old son of his marriage. He has applied either for shared residence or for residence to him alone, although I have not seen the actual application. In the course of discussion with him it seems that what he ideally would like is an order for shared residence. They are not easy to obtain and there is a residual feeling of reluctance by the judges to make them, treating them still as exceptional but the recent decision of this Court has endeavoured to dispel that notion and to indicate that in proper circumstances they can be made. It is no part of this judgment to comment on whether or not that is appropriate, though I do observe that in paragraph 4 of the Court welfare officer's report of the 13th of April, it was reported that:

"Initially it appears that Mrs J considered shared residence for J between his father and herself, ideally with them contining to live in the same locality and their son moving between their two homes."

3. She has changed her mind because of the difficulties in their relationship and the difficulties are immense. They are so immense that they prompt the father's application not, he tells me, out of a desire to aggravate his wife or to aggravate the difficulties, but because he has genuine reason to believe that she remains psychologically and psychiatrically fragile, and he draws attention to Dr Faith's report and to the report of the therapist whom the wife consulted.
4. In the course of my discussions with Mr J, he confronted the difficulties that could arise if he pursued his application to the fullest extent of investigating in minute detail that psychiatric background and in calling witnesses especially calling his own children and their friends and two ladies who must know everybody to support his case. He has I am happy to say withdrawn from that extreme position to his very great credit. At least I give him very great credit and it may be that the judge hearing him and, if possible, reading this transcript would be of a like mind.
5. The result of this lengthy debate with Mr J is that he withdraws his application for permission to appeal with the result that the matter can go ahead, if it is right to go ahead, on Monday. I note that in an early directions appointment the matter was to be set down before a District Judge. I am unsure why District Judge Freeman thought it necessary to sit as a recorder and thus as a deputy circuit judge. I intend no discourtesy or disrespect of the district judges in Manchester who I hold in high regard, but I cannot but wonder whether a rather fraught case of this kind might not be better dealt with by some of the circuit judges, and I think of Judge Bloom, Judge Allweiss and Judge Kushner and others with experience in family work. But that is a matter for the Court to resolve if it is a live issue on Monday.
6. I debated with Mr J how he could in honesty advance the best interests of the child, and I mentioned that it was a pity that the attempt of the Court to ease the difficulties of the parents through a family assistance order had come to nothing. I wondered, given the common ground that must exist that the mother has had psychiatric difficulties necessitating therapy and treatment, whether or not a professional group such as an intensive family mediation with the help of a family therapy unit might not produce what seems to be desired by everybody. What is desired is that J should be settled. He arguably would be settled as much sharing a home with his mother and his father (if that is thought to be appropriate), as living with one or other. It was a suggestion that met with a degree of approval from Mr J, and it may be that when he goes to Court on Monday, he will be suggesting an adjournment of his application in order to seek that help for the parties. Meanwhile the existing orders continue to be in force. If a further breathing space and cooling-off time for both parties that is achieved, it might be a more fruitful step to address the future of the family than to engage in a lengthy emotional battle which far from bringing the parties closer together would drive them further apart.
7. I dismiss his application for to appeal, commending him for his realism and hoping that the step he has taken can be recognised especially by Mrs J as a constructive step to a future for J where mother and father can be seen by J to be in a better frame of co-operation and conciliation, for only that will work to the boy's best interests. I will endeavour to have a copy of this judgment sent to Manchester for consideration by the Court in Manchester emphasising that the views that I expressed are really my own and that if this matter does have to be fully contested, then the Court, whoever the Court is, will feel free and feel bound to exercise a fresh and independent discretion. So the application is dismissed.
(Applicaton dismissed)