England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHAMPTON COUNTY COURT
(MR RECORDER AXTELL)

		Royal Courts of Justice Strand London, WC2 Friday, 11 October 2002

1. LORD JUSTICE THORPE: This is an application for permission to appeal an order made by Mr Recorder Axtell in the Southampton County Court on 29 July 202. The application for permission was provisionally refused on paper by me on 11 September and Miss Habel now exercises her right to renew at an oral hearing.
2. The order made by the recorder is of very limited scope. I emphasise that because it is at the heart of my conviction that this is not an appropriate case for permission. The judge simply said that the father should have contact to the child R during the week and once a month overnight Saturday through Sunday.
3. There were issues raised by the mother as to whether the father had abused either heroin or cocaine. There had been a scientific analysis of a hair strand. The judge found the content of the certificate to be unsatisfactory. He felt unable to make a finding that the father had used cocaine on two occasions. He said he was deeply suspicious and he made arrangements for a further test on a sample to be taken on 28 October. But what is of even greater importance is that he provided that he would look at this tentative trial of staying contact at a further hearing on 8 November.
4. Miss Habel says that he has departed from a recommendation of the court welfare officer. I really cannot accept that. The court welfare officer did say, in paragraph 45 of his report, that the monthly Sunday visit should be a day visit with R to be returned at a reasonable time during school terms. However, in paragraph 48 he went on to say that the summer holiday contact should be for no more than a week at one time. The plain meaning of that paragraph is that there is would be a week's stay in the summer holiday. Miss Habel says that perhaps he intended that there should just be seven consecutive day visits. Her instructing solicitors took no steps to clarify what the court welfare officer meant, nor did they arrange for him to attend the hearing. It is not surprising then, that the judge when he came to give his judgment said in paragraph 34:

"I am inclined  . . .  in granting the application to vary to accept the CAFCASS' recommendation. I have some uncertainty and misgivings about the sort of contact, not understanding all there is to understand completely, as contained in those last paragraphs of his report in the sense of what it would be if he were here he would say was appropriate in light of all the circumstances having heard my findings of fact."

He then went on to say that he thought the monthly Sunday visit was not good enough as a day visit and should be extended to an overnight stay. He said -- and this is important -- that he proposed to fix a review date in respect of that. He went on to consider the question of holiday contact and said that it was too soon to order a week in the summer holidays. So to that extent the father achieved less than the court welfare officer was recommending.

5. The judge plainly took a moderate course. He plainly took a cautious course. He plainly provided for an early review. This is nowhere near business for the Court of Appeal. The case can perfectly well be managed in the court of trial. The judge can look at what has happened since 29 July. He has a complete discretion as to whether to progress further along the road towards normal staying contact between father and child or whether, in the interests of the child's welfare, he has to take a backward step. All that is for the judge. It is not the business of this court.
6. Miss Habel points out that the child has been distressed by all these disputes between her parents. That is very regrettable. I am concerned that these parents seem to think that the only way of resolving their difficulties is by litigation. Miss Habel tells me that they have not sought to mediate. Plainly this child's welfare would be primarily advanced if she could see her parents sensibly communicating and sensibly agreeing the arrangements for future contact. I am not going to direct that letters be sent to these parents inviting them to mediate through the Court of Appeal scheme because I think that they would be better served by a local mediation service, but I would give this very strong message, that active consideration should be given to mediation between this couple and each should be ready to explain themselves in relation to mediation when the case is next listed in the court of trial on 8 November.
7. For today, this renewed application is dismissed.
ORDER: Application refused