England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE OXFORD COUNTY COURT
(His Honour Judge Crawford QC)

		Royal Courts of Justice Strand London WC2 Thursday, 18th July 2002

1. LORD JUSTICE WARD: This is an application for permission to appeal the order made by His Honour Judge Crawford QC, probably on 24th April 2002. I say "probably" because the order has not yet been drawn and I have indicated that it is imperative that the order be produced by the Oxford County Court immediately. The order was made on that day because the parties invited the judge to deliver a reasoned judgment for the disposal of the matter before him. He had in fact heard the matter on 14th March, at the end of which he set out, with limited reasons, the conclusions which he had reached, and a judgment of 24th April supplemented that decision made earlier.
2. The order is an unusual one, providing for the father to vacate the matrimonial home, but in its essence it remains an order for shared residence by the parents of their daughter, S. The arrangement is as expressed in the draft order before me: that the child shall live in different households of the parties, with the father for three days a week and with the mother for the remaining four days a week. Those different households are to be carved out of the matrimonial home and the child is directed to reside at that address.
3. The mother seeks permission to appeal. The question is whether she has shown that there is a real prospect of success in the appeal or whether there is some other compelling reason for it. There is a real prospect of success if those prospects are realistic as opposed to being fanciful.
4. Mr Nicholls' first submission is that, in carving out a bedroom for occupation three nights a week by the father (from which necessarily the mother is during those times excluded) in circumstances where he has his own home to go to for the whole of the week, the judge has exceeded the ordinary ambit of discretion. Secondly, he says that if in its nature the order operates as a condition of residence under section 11(7) of the Children Act, that is beyond the court's jurisdiction as being an attempt to use the Act to arrange the occupation of the home, which is a jurisdiction reserved to the Family Law Act.
5. Mr Nicholls submits that upon analysis the judge's judgment contains inconsistencies, in that he recognised that it was impracticable for the mother to move out of her home, yet he accepted that if the mother found it unacceptable (which seemed likely) she probably would have to leave the home. Mr Nicholls submits that the effect of the order is disproportionately to interfere with her right to her home and to her private life, though he may not put it principally in terms of Article 8 of the Human Rights Convention.
6. Miss Selman submits with force (and, it may be, eventually successfully) that there is no point of real principle; that, in a most unusual case, the judge was nonetheless exercising a discretion and it cannot be shown that he was plainly wrong and plainly outside the generous ambit within which there is room for disagreement.
7. Acknowledging the force of that submission, it seems to me nonetheless that Mr Nicholls does satisfy the test that there is an arguable point to take to the full court, and I give permission accordingly.
8. I direct that the case be heard by a court of three, though the third member can be a High Court judge, not necessarily a lord justice of appeal. The court must contain at least one lord justice from the Family Division, but I do not reserve the appeal to myself and, in the light of what I am about to say, it may even be preferable that I do not continue. If the parties in due time believe it better that I do not, then that must be respected. The time estimate will be a day. Costs will be costs in the appeal.
Order: application for permission to appeal granted; mediation to be pursued, but, if not successful, matter to be heard before a 3-judge court (to contain at least one lord justice of the Family Division, and counsel to indicate whether Ward LJ should participate); time estimate one day (direction given that matter is fit for vacation business); counsel to send joint letter of instruction to Dr Pike in order to obtain further medical evidence; costs in the appeal.