England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM GLOUCESTER COUNTY COURT
(His Honour Judge Hutton)

		Royal Courts of Justice Strand London WC2 Tuesday, 8th May 2001

1. LORD JUSTICE THORPE: This is an application for permission brought by Miss Wills-Goldingham on behalf of JC who challenges the interim order made by Judge Hutton in the Gloucester County Court on 11th April. The issue was limited, since all the judge was asked to do was to fix the home in which the only child of the marriage, J, should live pending a fuller investigation. J was then about 15 months old, having been born on 16th December 1999. The parents separated on 20th February 2001 in circumstances that are disputed in their brief witness statements. It is, however, common ground that on that day the mother left the final matrimonial home without J, and that when she spoke to the father on the telephone about two days later, saying that she wanted to collect J, he was very upset and said that she could not see J until he was grown up. At least he has expressed his regret for such an angry reaction.
2. The mother's application for a residence order was issued in the county court about a month after her departure, and it was that which came before Judge Hutton on 11th April. He took the case as an emergency since the District Judge was ill and he was in fact in the midst of a criminal trial. But nonetheless he heard oral evidence and delivered a brief judgment which has been noted but not transcribed. Judge Hutton has, however, approved the note.
3. The order that was drawn to reflect the judgment says that the father should have interim residence with alternate weekend staying contact to the mother, the court welfare officer's report by 11th July, directions hearing 16th July.
4. Miss Wills-Goldingham makes some valid points that would have impressed me had I been the trial judge. I think I can say, with reasonable confidence, that I would not have made this order. If I had not given the mother the interim residence I would certainly have given more extensive contact than the judge gave. I would have endeavoured to arrange a swifter hearing. But the question that I have to ask is a different question, namely did this order fall outside the very generous ambit given to a trial judge in making what are short term orders pending fuller investigation? Miss Wills-Goldingham says that he should have taken account of the welfare check list. Innumerable interim orders are made by judges and district judges without that elaboration. She says that it was wrong in law because he did not notice that the father was delegating care to his parents whilst the mother was available as a full time carer. That cannot be right. The judge had that position clear from the statements of the parties. He was satisfied that J was properly cared for by the father and the paternal grandparents, and he was satisfied that it was better to leave things the way they were in the short term. I cannot categorize this as an order that was plainly wrong, given that it was only a holding order.
5. I also think that the provisions as to staying contact, whilst more niggardly than I would have ordered, are still within the parameter of the reasonable. At least the judge ordered staying contact. At least it is a full weekend every other weekend. It is regrettable that the burden falls on the mother to do all the travelling and to finance all the travelling. It is unfortunate that the hour of collection and delivery is not more exactly specified, but at least I understand that there have been sensible variations to allow the mother to collect in the middle of the day on Friday, even if the father is now asking for a tea time return. I think it is important that those acting for the mother obtain a final hearing date, either in the week commencing 23rd July or the week commencing the 30th. If they cannot get that date with a time estimate of a day in the Gloucester County Court, then it is my firm view that they should test alternative venues. Presumably, the father could readily get either to Bristol or Swindon. It is sensible to keep the case within the same court group. If there are difficulties, perhaps listing in Gloucester could get in a recorder or get a judge to come up from Bristol for the day. This is urgent business. That is the only relief that I am able to offer on an application for permission, which does not justify further appellate review. The application for permission is refused.
Order: Application refused.