England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PORTSMOUTH COUNTY COURT
(Her Honour Judge Davies)

		Royal Courts of Justice Strand London WC2 Monday, 27th May 2002

1. LORD JUSTICE WARD: This is an application by Mr G for permission to appeal parts of the order made by Her Honour Judge Davies in the Portsmouth County Court on 27th March 2002. The judge was dealing with what I understand to have been a directions hearing, not the hearing of the appeal against the order made by District Judge Wilson on 4th March 2002.
2. The part of the district judge's order particularly under appeal was paragraph 1, which dismissed this father's application for direct contact to his two sons, J, who is soon to be thirteen, and L, who is nine and a half. The district judge did, however, order that father should have some indirect contact with the children:

"... by means of a letter or card to each child every three weeks, the mother to be able to read any such communication, but being required to hand the letters or cards to the children and to preserve them. The father to be permitted to send presents and cards on each boy's birthday and Christmas."

3. In addition, father was to receive copies of school reports etc.
4. When the matter came before Judge Davies she observed, rightly, that she could not properly consider an appeal from the district judge's order without having a transcript of the judgment which he gave. I have been able to read the transcript of the proceedings before her and to see how that difficulty was expressed during the course of the argument. She made it plain (for example at p.12) that the father had to get a transcript first. At p.13 she said:

"... it is actually the judgment that I want."

5. When it was pointed out that this was a challenge to findings of fact made by the district judge, who had failed to take into account evidence actually given by the mother to him, Judge Davies said:

"I suggest you request the notes that will have been kept by counsel, or your then solicitor, of the evidence that was given at that hearing."

6. She was not prepared to assist the father to obtain that transcript, he having said that he was without the means to pay for it.
7. The judge took the view that he had to pay for it. Whether she was right or wrong does not now matter. This court has taken the view that, because the father is on public assistance and has had court fees remitted, he is eligible to have transcripts provided to him at public expense. As a result, one way or another a copy of District Judge Wilson's judgment is now to hand and a copy of it is available to the parties and, of course, to Judge Davies. Consequently, the father's appeal against her order that there be a transcript of the district judge's judgment at his own expense has become wholly academic. We now have the judgment. Consequently, the judge will be able to do what she said she wanted to do: that is, to consider the judgment. As I understand her approach, she will hold a further directions appointment, at which Mrs C need not attend, when she will give further consideration to the hearing of this appeal. As the application for permission to appeal paragraphs 1 and 2 of Her Honour Judge Davies's order of 27th March has become wholly academic, I can dismiss that application.
8. I wonder, though, whether it would be helpful to express a few further thoughts about the continuing progress of this matter. Mr G has to grapple with the difficulty that, as a result of the judgment of this court recently in Cordle v Cordle [2002] 1 FLR 207, appeals from district judge to circuit judge are now being disposed of in the same way as appeals to this court are being dealt with; that is to say, by review of what happened in the court below, not by the taking of fresh evidence before the appellate judge. That is why, I dare say, Judge Davies indicated early on that it was most unlikely that she would be persuaded to admit evidence in the appeal before her.
9. Nonetheless, it can be a valid ground of appeal that the judge in the court below has made findings of fact for which there is either no evidence or which is in the teeth of the evidence and against the weight of the evidence. Mr G is particularly anxious to demonstrate that in the course of her evidence the mother admitted under cross-examination that, following an acrimonious telephone call between mother and father, she was a little discouraging - I endeavour to put the matter neutrally - of the boys having contact to their father. The father has followed up the judge's suggestion of inviting his counsel and his solicitors to provide a note of that evidence. I have been shown a letter from counsel in which he indicates that, because he was cross-examining, he took no such note, though he has a clear recollection of the evidence upon which Mr G wishes to rely. No solicitors were present.
10. It is likely, therefore, that at the renewed appeal before Judge Davies the same question will arise again. In view of the fact that father is publicly assisted, it may be that Judge Davies will consider more sympathetically a request to obtain at public expense a limited amount of the evidence. The only material part, I would have thought (on what is available to me, but I have not heard the whole case), would be the cross-examination of the mother, but that is a matter which Judge Davies should consider if and when the question arises before her. I am sympathetic to her response that these requests should not be easily granted. She is following the conventional wisdom. But in a case like this, which bristling with difficulties, it may be that, for what may be (on information available to me, I know not if accurate or inaccurate) the expense of £50 or so, it may be better in the overall interests of justice, in fairness to the parties and in fairness to the boys, to have some limited further assistance for the judge to consider on the appeal. More than that it would be imprudent for me to say.
11. But the result is that the application for permission to appeal is dismissed. A copy of the transcript of this judgment at least should be available to mother and father at public expense. I will direct that a copy of District Judge Wilson's judgment be put on the County Court file.
Order: application for permission to appeal dismissed; copy transcript of this judgment to be provided to mother and to father at public expense; copy of District Judge Wilson's judgment to be put on County Court file.