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Cite as: [2002] EWCA Civ 1769

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		Neutral Citation Number: [2002] EWCA Civ 1769
		B1/2002/1817

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR JUSTICE JOHNSON)

Royal Courts of Justice
Strand
London, WC2
Monday, 25th November 2002

B e f o r e :

LORD JUSTICE THORPE
____________________

C (CHILDREN)

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(Computer-Aided Transcript of the Palantype Notes of
Smith Bernal Wordwave Limited
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____________________

THE APPLICANT FATHER appeared on his own behalf, assisted by MR P DUFFIELD as a McKenzie Friend
THE RESPONDENT did not appear and was not represented
____________________

HTML VERSION OF JUDGMENT
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LORD JUSTICE THORPE: This is Mr C's application for permission to appeal orders made by Johnson J on 22nd July. Mr C founds his application on a judgment of this court given on 20th February 2002. I need no reminding of that, because I was one of the judges of the constitution presided over by the President, who delivered the leading judgment. There is no doubt at all from paragraph 13 of the President's judgment that it was her intention that the major problem surrounding Mr C's relationship with his daughter, M, should receive profound investigation and a fresh appraisal by a most senior trial judge.

Accordingly, in paragraph 13, the President said that CAFCASS Legal should act as guardian for both children, should read into the papers, should have leave to instruct a mental health professional with a view to looking at the entire family to see whether there was a solution. CAFCASS, the President said, crucially should be given the opportunity to see the papers as soon as possible.

I rest on the directions hearing of 3rd May, passing over a number of intervening communications, particularly communications between Mr C and the court. 3rd May was a hearing in front of Johnson J, and it is unfortunate that on that occasion Mr C was absent in the United States. Mr Duffield his McKenzie Friend attended. Mr C says he was only there as a McKenzie Friend, but both the transcript of proceedings and the order as drawn suggest that the judge granted to him right of audience. Manifestly Mr C was to some extent vulnerable, in that he was neither present nor represented on the 3rd.

I move on now to consider what happened on 22nd July, a hearing again before Johnson J, a hearing at which Mr C was present to represent himself. CAFCASS did not attend on that occasion, and that was perhaps unfortunate. The judge considered two issues, not only contact to M and TA, but also the level of periodical payments in dispute between Mr C and his former wife.

We have a transcript with what is then described as a judgment. The judgment between pages 688 and 690 is, in effect, little more than the judge laying down the directions that he intended to bring the contact dispute before him on 29th November with CAFCASS before the court. Both Mr Oliver, counsel for the mother, and Mr C intervened from time to time contributing to the development of the directions.

The resulting order is to be found in Mr C's third bundle at page 588. It is a conventional directions order in a contact case, providing for the hearing on 29th November, providing for interim contact to TA in the interim, and providing for the filing of evidence and a direction that CAFCASS is to attend and make submissions in relation to each child.

Then there follows, at page 690, the judge's consideration of the financial issue. This could be said to be something closer to a judgment. For, having dealt with the necessary directions to carry the preparation through to the hearing of 29th November, the judge concluded by considering what interim order should run over the intervening four months. He heard submissions from both Mr Oliver and Mr C, and then finally at page 695, line 26, through to the conclusion of his judgment at 697, line 3, he explained why he was setting a monthly payment of £1,100 through the intervening four months. That judgment is reflected in the order to be found in bundle 2 at pages 590/591. Again, it is a perfectly conventional order in an application for enforcement and variation. The two applications, mother's application and father's application, are adjourned to 29th November. The parties are then directed to take certain steps in the interim for the filing of evidence and the exchange of relevant documents. Then, in paragraph 8, comes the essential adjudication that in the short-term the monthly rate is to be set at £1,100.

Let me come on to the timetable. Mr C apparently sought permission from the judge to appeal. The judge did not rule upon that until 8th August, when he completed the standard form and annexed a very full and helpful statement of his reasons for refusing permission. Mr C tells me that that did not reach him until early October. If that is the case, it is regrettable. However, in the interim Mr C took the precaution of filing his notice of application here on 23rd August. However, his bundle was not filed until 4th October and the bundle, because of deficiencies that the office chased, was not approved until 19th November. I received the papers on the 20th and directed this hearing today, the 25th. So I am able to dispose of the applications for permission prior to Johnson J's hearing on Friday.

As I have acknowledged in my exchanges with Mr C, these three lever arch files in support of this slender application are exhaustive and must have been expensive for him to prepare, both in terms of time and money. He seeks by a skeleton argument, which is impeccably presented and runs to 37 pages, all manner of relief, much of it quite outside the jurisdiction of this court to grant.

So what I have tried to impress on Mr C is the reality. This court does not grant permission in relation to directions orders which are made in order to ensure the smooth preparation of a pending issue for trial. Nor does this court grant permission in respect of orders that are directed to be of very brief lifespan. Of course that general principle admits of exception, but there is nothing in this case that could begin to be said to be exceptional.

Before I conclude this judgment, I do want to acknowledge that there may well be considerable justification for Mr C's sense of frustration and injustice at the progress of events since this court expressed the view that it did in paragraph 13 of the President's judgment on 20th February. It is a matter of public record that CAFCASS has very great difficulty with its current resources to cover its essential workload, let alone the exceptional demands of a difficult case. Mr C says that CAFCASS has failed him abjectly since 20th February. It may well be that he can make that submission good, in part if not in whole. Mr C is also right in submitting that this court intended on 20th February that there should be a fresh endeavour, both by CAFCASS and by a judge of the High Court, to resolve the breakdown in relationship between himself and his daughter, M. It is disappointing to see how little progress there has been since 20th February. Johnson J on 29th November, Friday of this week, has both the opportunity and the responsibility to address that issue. It is plain from his observations transcribed at the earlier directions hearings that he recognises that that is the core challenge and that it is a challenge that he intends to meet.

Mr C says, and I think with some justification, that a single day to deal with the dispute over contact to both girls, as well as the dispute as to finances, looks very tight listing and may well prove inadequate. I would hope that priority will be given on the 29th to tackling the problem of the relationship between Mr C and the children above the investigation as to whether the monthly payments should be continued at the rate of £1,100, or at some lesser or some greater sum.

I will say that this judgment should be transcribed at public expense. I will ask the shorthand writer if she would be kind enough to get it to me as a matter of expedition so that I can get it to Johnson J approved in time for the hearing on Friday.

Otherwise, these applications are dismissed.

ORDER: Applications for permission to appeal dismissed; transcript expedited.

(Order not part of approved judgment)