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 BARNET COUNTY COURT
(HIS HONOUR JUDGE LATHAM)

		Royal Courts of Justice Strand London, WC2 Wednesday, 9th October 2002

1. LORD JUSTICE THORPE: Today the father seeks permission to appeal an order made by the President on 2nd July in relation to the children. This case, as the father points out in his helpful skeleton argument, has had innumerable previous listings. He has totalled them as follows: 34 court hearings at either Barnet County Court, the Family Division or the Court of Appeal. There have been 49 previous court orders flowing from 23 previous applications, and throughout the mother of the children has been represented by solicitors and counsel funded by the Legal Services Commission, whereas the father has presented his case as a litigant in person.
2. This morning I have used my best endeavours to explain to the father the different functions of the President sitting as a judge of trial in her own Family Division and the function of this court. The principal effect of the order of 2nd July was to confirm that an operation fixed for 9th July on T, the elder child, should go ahead despite the hospital's refusal properly to involve the father in preparations for the procedure. That operation having been completed on 9th July, it is obvious that there is no possibility of putting the clock back and re-opening the position as it was on 2nd July.
3. Insofar as the order of 2nd July also provided for interim contact, that interim was only until a further hearing before the President on 2nd October. I have explained to the father how rare it is for this court to grant permission to appeal what are purely interim orders, and I have also sought to explain to him the breadth of the discretion that is vested in the judge of trial, which is respected by this court and as a matter of principle prevents this court from substituting its discretion for that of the trial judge.
4. Mr A nevertheless takes this point. He says that the order for contact was fixed by His Honour Judge Latham in the Barnet County Court in October 2001. He points out that the mother sought permission to appeal that contact order on the grounds that it was manifestly excessive. He points out that her appeal was dismissed by this court on 12 February 2002. He particularly relies on paragraphs 11 and 12 of my judgment, in which I explained that Judge Latham had had a very extensive experience of the case and that his discretionary decision to extend the father's staying contact was simply not to be questioned in this court. I said:

"The judge had had the management of the case throughout. He was the best person to balance the need for progress against the risks involved. He reached a discretionary conclusion on that. He was largely supported in that by the court welfare officer. In my opinion it would be unprincipled for this court to interfere with that provision in the order."

5. So, says Mr A, it was not open to the President to depart from the programme set by Judge Latham once it had been expressly commended by this court. Mr A says: "Well, despite the high office that the President holds, she was on 2nd July sitting as a trial judge and, as such, she was plainly subject to the prior rulings of this court." Whilst I can understand the basis upon which the father presents his application, as I have pointed out to him the argument is fundamentally flawed. For what the President was doing on 2nd July was to reconsider what was the best pattern of contact for the children between 2nd July and 2nd October in the light of subsequent events, and particularly in the light of the fact that T was to be a hospital patient for perhaps 10 days from 9th July. Plainly, variation of an order made in October 2001 was appropriate, given the significant change of circumstances unforeseen by the circuit judge. Plainly, the President exercised a very broad discretion on 2nd July and, just as the order of Judge Latham was unimpeachable in this court in February 2002, so is the order of the President of 2nd July unimpeachable in this court in the month of October 2002.
6. I only add that the President indeed took the case on 2nd October, and I have seen a copy of the order which she made on that date, which has had the significant effect of bringing the children into the proceedings as separate parties, and of attempting to arrange representation for them through the National Youth Advocacy Service. This application for permission has no proper foundation and I dismiss it. I only add that a copy of this judgment is to be made available to the father at public expense.
Order: Application refused; copy of judgment to be supplied to the applicant at public expense.