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 THE HIGH COURT
NORTHAMPTON COUNTY COURT
(HIS HONOUR JUDGE MITCHELL)

		Royal Courts of Justice Strand London, WC2 Tuesday, 22 October 2002

1. LORD JUSTICE WARD: This is a renewal of an application for permission to appeal, permission having been refused on paper by Thorpe LJ for reasons which may well turn out at the end of the day to be good reasons. What troubles us is that the child with whom we are concerned, a young girl aged 4, was removed from the father's care in April when the mother attended at this home to serve South African proceedings upon him. Through the intervention of the police officer, whose role is the subject of criticism in this case, the child went away with the mother to London. Father therefore applied for an order for her return and was successful on an application made without notice. On the return day His Honour Judge Mitchell ordered that the issue of "interim residence" be further considered by the court on 11 June with a time estimate of half a day. He also ordered a CAFCASS report and gave directions for that hearing.
2. When the matter came before him on the afternoon of 22 June 2002, having been stood over a few days from 11 June, there was some discussion about the way the proceedings should progress. The judge, as appears from the transcript, was of the view that he did not want to see matters the subject of continual litigation. He expressed the view that if there was anything in the finding he was to make that day, then the mother's proper course of action should be, as he said at the bottom of page 7 of the transcript:

"...to revisit that through the appellate procedure rather than issuing immediately a further application to revisit it, or to look at the issue."

He said on page 8:

"All I am saying is that if there is a disagreement with regard to the conclusion in the proceedings today -- and I do not know [what] that is going to be at the moment -- then, in my view, for either party before me, is that the proper course would be an appellate course rather than a revisiting by way of a further continuation of these proceedings.

What I had in mind originally was that we would not have a full report for today, or for the original hearing of the interim application for residence. I believe that we have a full report. We will hear what Mr Woods [the CAFCASS officer] has to say about that. We will hear what you have to say in cross-examination. That is a preliminary view that I have expressed. I may come to a wholly different conclusion in the light of what arises out of the evidence. I do not know."

3. The judge then proceeded to hear the matter and gave a judgment in which he expressed himself adversely against the mother. Only in the very last exchange did he say what he thought the proceedings were to have been. He said at page 25 of the transcript:

"What I have not said is that as far as I am concerned, there is no need for any further directions with regard to the substantive application. I have dealt with it today."

4. I am troubled about that procedure because the mother came to deal with an interim application listed for half a day when not all the issues that were highly material could be properly canvassed. Indeed, counsel protested that they were not ready for a final hearing. For the judge to have proceeded as he did amounts, arguably, to a procedural irregularity which would found the appeal as an independent right. In my judgment, permission should be granted for that reason alone.
5. We have not explored the specific challenges to the findings of fact. There are some arguments to support the challenges to them. It may be a difficult task to undertake. I would not exclude the mother from arguing those grounds of appeal, and I would therefore grant unconditional permission to appeal the order of Judge Mitchell made on 24 June 2002.
6. In saying that, and in observing the mother's obvious distress, I would add the caveat that it remains a difficult appeal. The fact that permission has been granted should not lead to an optimistic forecast as to the eventual conclusion.
7. LORD JUSTICE LATHAM: I agree.
Order: Permission to appeal granted.