England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2002] EWCA Civ 1336

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		Neutral Citation Number: [2002] EWCA Civ 1336
		B1/2002/1078

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ALDERSHOT AND FARNHAM COUNTY COURT
(His Honour Judge Milligan)

Royal Courts of Justice
Strand
London WC2
Thursday, 30th May 2002

B e f o r e :

LORD JUSTICE WARD
____________________

	MADELEINE VIMPANY
	Claimant
	(Respondent)
	-v-
	(1) CHRISTOPHER DOUGLAS CHELSEA	(Applicant)
	(2) JEFFREY FREDERICK CARLTON
	Defendants

____________________

Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited
190 Fleet Street London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
(Official Shorthand Writers to the Court)

____________________

The Applicant First Defendant Mr Chelsea appeared in person (assisted by Mr Carlton).
The Respondent Claimant did not appear and was not represented.
____________________

HTML VERSION OF JUDGMENT
____________________

LORD JUSTICE WARD: This is a very unhappy family dispute in a family racked with tragedies of one sort or another. The applicant is Christopher Chelsea. He and his twin brother Jeffrey were the respondents to an application brought by their sister Madeleine for injunctions restraining them from molesting or threatening her and, more importantly for today's purposes, for an order that Christopher Chelsea give up the occupation of the flat he has been sharing with his sister.

In a nutshell, the matters which bring this to court are as follows. Christopher became homeless. He lived for a while with his mother, but that was a difficult relationship and he had to leave. His sister Madeleine offered him temporary accommodation in a flat of which she is the tenant. Christopher suffers from quite severe disability. Although comparatively young, he has severe osteoarthritis which cripples him, this being the result of a childhood disease about which not a great deal seems to be known. He is therefore in need of care. The local authority are not always able to provide that care for one reason or another, and some of the reasons do not matter. He turns to his twin, Jeffrey, to look after him.

Unfortunately, life, as lived by these two brothers with their sister, was fractious indeed. There were endless difficulties and problems between them. Madeleine complained of acts of harassment by her brothers, some of which were threatening. She complained of Christopher shaking his crutches at her and putting her in real fear. Her disability is that she is of fragile mental health, has severe personality disorders and has a history of psychiatric treatment. The pressures of this close living in unhappy circumstances took its toll on Madeleine's mental wellbeing and she made such serious attempts to take her life that she was admitted (not, it has to be said, for the first time) as an in-patient to the local psychiatric hospital, where she remains because, on the medical advice accepted by the judge, her condition is too fragile for her to return to her home. She therefore occupies a hospital bed which no doubt might be filled by someone else.

The judge accepted that psychiatric evidence. He accepted the sister's evidence in preference to the evidence of the brothers, and he came to the conclusion that there had been harassment, threats and so forth which justified the making of the injunction, to which was coupled a power of arrest. I can see no error whatever in those conclusions, which are conclusions of fact with which this court could not possibly interfere.

He then had to consider whether to make an order which would require Christopher to leave. He found that Madeleine was at significant risk of harm if she were to remain in the property, and the breakdown of her mental health is ample justification for that finding. The judge was equally mindful of Christopher's disabilities, which in other circumstances might have made a compelling case for his being permitted to occupy. But he was required by the Family Law Act, sections 33(6) and 33(7), to balance the degree of harm that each might suffer if one or the other was to be removed from the home. The balance came down in favour of Madeleine, and in those circumstances the judge had no option but to make an order for possession. He did so on 14th May and he gave Christopher until tomorrow to leave his sister's flat.

Christopher now applies to me for a stay of the execution of that order pending an appeal against the order itself. I am hugely sympathetic to everybody that is involved in this sad case; and, were I able to work the magic, I would be very keen to do so. I can, however, only act within the constraints of the law, which require me to consider whether there is any real prospect of success in an appeal. That means a real prospect as opposed to a fanciful one. Sympathy is, alas, not enough to come to the court's aid.

The present position is that Christopher has been offered a tenancy by a private landlord of a single-bedroomed, fully furnished flat in Farnborough, at a rent which will be covered in whole or in part, it is hoped and expected, by housing benefit. He is required to pay a deposit of £1,000, and how that is to be provided I simply do not know, but at the moment the landlady is sympathetic and I do hope she will continue to be so. It is vitally important, I say to Christopher, to keep this tenancy, because he, more than anybody, is aware of the difficulties he has encountered in the past in getting any help, even from the local authority under the homelessness legislation, because, unfortunately, he is regarded as intentionally homeless within the definitions of the Housing Act, having fallen into arrears with rent in a previous tenancy. He is in a parlous position, where the local authority's resources do not offer a great deal. It is imperative, therefore, that he clings on to this tenancy and does everything he possibly can with this kind lady to live amenably in her property. There really has to be considerable restraint on the kind of behaviour that in the past has led to difficulties. He tells me, no doubt with every justification, that he is the comedian and a ladies' man, the twin of charm. He needs to work that charm on this landlady to keep the tenancy, otherwise life looks grim. I hope, therefore, that she will be sympathetic to his efforts to keep up payment towards the deposit and that, if she is assured of getting housing benefit regularly, she may be prepared to relax that requirement, with rent coming in, as certainly it ought to.

That tenancy becomes available, technically, tomorrow. The plea - the cri de coeur - is that I allow a month's further time. I have no power to do so. I simply cannot grant a stay of execution in an appeal which, frankly, is hopeless.

The most I can do is this. I will invite the Court of Appeal Office to communicate with the sister Madeleine's solicitors and explain that I am extremely anxious that this family make a last-ditch effort to work together satisfactorily so that Christopher can be given a little extra time to move out. I will ask the Court Office to write also to the consulting psychiatrist at the Ridgewood Centre who treats Madeleine, explaining the difficulties and inviting his help in looking after Madeleine for a little longer to allow this further time to be given. For my part, I do not believe that, with the tenancy available, it takes a month to move out. Quicker efforts must be made than that. If Christopher and Jeffrey are able to leave me details of someone at the Social Services Department with whom to communicate, I will ask the Office to contact them, so that, if we can speed the grant of loans, I will do my best to facilitate it. As a judge, I regret that there is nothing I can do, but I hope the Social Services Department of the Royal Courts of Justice, operating through Lord Justice Ward and Mrs Di Mambro, will do their best for this unhappy family.

I regret that the applications, however, must be dismissed.

Order: applications dismissed.