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 WORCESTER COUNTY COURT
(HIS HONOUR JUDGE DURMAN)

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

1. LORD JUSTICE WARD: This is an application by Mr A for permission to appeal against the order made by His Honour Judge Durman in the Birmingham County Court on 30 January 2002. It is an order, made by consent, to define the contact that Mr A should have to his four children. The fact that it is an order made by consent which is the subject of appeal, at once indicates one of the major difficulties that confronts Mr A. One would be inclined to think that there could be no realistic prospect of appealing a consent order which was made on his behalf by quite experienced counsel and approved by the judge.
2. In his skeleton argument Mr A sets out a number of complaints, which troubled him but have not been troubling me, about defects, for example, in the inquiries made by the court reporting officer. As to his prospects of successfully appealing the consent order, I understand that Mr A feels under pressure or felt under pressure on the day. He may or may not be able to establish that. But, what does trouble me on close examination of the order is that it may be incomplete and unworkable. As an agreement it may be so vague as to be unenforceable and therefore capable of being set aside on that ground alone.
3. The parties agreed that no further application to the court could be made regarding residence or contact until January 2006 at the earliest, a date four years after this matter was before the court unless there was some substantial change of circumstances. Paragraph 3(d) of the schedule provides as follows:

"For the avoidance of doubt paragraph 5 of the order of 11 February 1999 which provides for such reasonable visiting and staying contact in England as may be agreed between the parties, shall be deleted."

4. The consequence of that seems to be that the order deprives the parties of the power to agree further reasonable visiting and staying contact and does not permit an application unless there was some substantial change; arguably, perhaps, a failure to agree is not such a substantial change.
5. The schedule provides in understandable terms for the provision of school holidays and half terms, but paragraph 7 of the schedule provides:

"That in addition to the above the father will have pairs of weekend staying contact, in Year 1 it will be separate pairs of weekends and in year 2 it will be 5 separate pairs of weekends (from Friday at 6pm until Sunday at 6pm)."

6. The order then gives the actual dates for 2002, duly providing for two pairs on the weekends of 15 and 22 March, and 19 and 26 April. It also gives precise details for 2003, identifying the five pairs in March, May, June, September and November running over into December. The rhetorical question is what is to happen in 2004, do we revert to two pairs of weekends as if the arrangement were alternating? The order does not appear to say so, although it does provide for the alternating basis for dividing the schools holidays. If one overcomes that hurdle and assumes that they are alternating pairs, when are they to take place if the parties cannot agree about it and there is a bar on an application?
7. The matter is perhaps made worse when one looks at what was explained to the judge. He was told by Miss Budden, Mr A's counsel, at the foot of page 7 that it was a complicated procedure, "but we hope that agreement is reached".

"JUDGE DURMAN: : What I will do is I will initial every page of this order and the schedule.

MISS BUDDEN: The schedule is not complete as yet.

JUDGE DURMAN: No, but I shall initial it insofar as it goes.

MISS BUDDEN: Thank you.

JUDGE DURMAN: As I say, I think I ought to see it if I am making an order which refers to it."

8. At page 9 the judge refers to the years 2004 and 2005. Miss Budden explains:

"We are going to identify a precise framework for that.

JUDGE DURMAN: I note that you will agree, what is it, contact for which years?

MISS BUDDEN: It is 2004 and 2005.

JUDGE DURMAN: Right. Parties to agree dates for contact for years 2004 and 2005.

MISS BUDDEN: I think we are going to have to agree a framework because we do not have the school holiday dates, rather than precise dates. So we are going to agree a framework for contact.

...

JUDGE DURMAN:  . . . you will agree a framework and that will be added to the schedule?

MISS BUDDEN: That will be part of the schedule, yes.

JUDGE DURMAN: Is that going to be done in the next week or so?

MISS BUDDEN: We thought we might do it this afternoon.

MISS FRIEL: Yes.

MISS BUDDEN: I mean not to trouble the court of course.

JUDGE DURMAN: No, well what I would ask you to do then, if you are going to do that now, leave it with the - well make some arrangements to leave it at the court and I will see it tomorrow morning."

9. The result of that exchange seems to be that the parties had not agreed the framework for the last two years, although they told the judge they were going to do so. Nothing appears on the papers before me to identify how the pairs of weekends, and what pairs of weekends, are to be provided for in those last two years. The agreement may be incomplete, it may be an agreement to agree, it may be that it is not an enforceable binding agreement which the court could properly approve. Mr A makes the point, and I do not suppose that he has knowledge of the ancillary relief procedure and Livesey v Jenkins [1984] AC 424, that it is the judge's duty to make an independent judgment of the arrangements because it is his duty to put the welfare of the children as his paramount consideration. He may arguably be right and I say no more about that.
10. The final anxiety that I have is that, in the course of the exchange, Miss Budden said at page 6, that she was hoping to avoid all litigation for the 4-year period. She continued:

"We are hoping by then, I should also say, the mother has indicated that she would agree to attend counselling with the father with a view to hopefully improving their working relationship and with a view hopefully to matters thereafter being to proceed by agreement."

11. I make two points about that. First, it does not appear on the face of the written terms; and, secondly, it seems to run counter to the express term that the parties were not to agree further contact. I am troubled that this agreement cannot be made to work in the future and, arguably therefore, it should be set aside.
12. Rather than give permission to appeal now, I will adjourn this matter to be heard on notice to Mrs A, with the appeal to follow if permission is granted. Mr A is entitled at that adjourned hearing to raise the further arguments he has on merits if so advised. I say no more about the realistic prospects of success of those matters. My provisional view, as I tried to explain to him, is that, unless he can establish that the judge was wrong to approve the agreement put before him, or unless he fails to establish some serious procedural irregularity, the judge can hardly be said to have gone wrong in his treatment of the merits because the merits were never allowed to get to him, given the course the hearing took.
Order: Application to be relisted on notice to all parties with appeal to follow if permission granted. Copy of this judgment to be made available to the applicant and respondent at public expense. Application to be listed before two Lords Justices, one of whom can be a High Court Judge. Time estimate 2 hours.