England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
NEWCASTLE UPON TYNE DISTRICT REGISTRY
(Mrs Justice Black)

		Royal Courts of Justice Strand London WC2 Tuesday, 19th February 2002

1. LORD JUSTICE THORPE:This renewed application for permission to appeal concentrates on the judge's finding that an incident of abuse took place, not on 3rd July or the 3rd of the following January, but on Christmas Day, between the two. Mr Cohen QC, for the applicants, says that that assertion was never put, during the course of the long trial, by Mr Cobb, for the local authority, but had its origin in his written submissions, which, as a result of the overrun of the trial, were e-mailed to the judge after she had risen in Newcastle. Mr Cohen makes a number of other criticisms. He points to inconsistency between the theory adopted by the judge and the evidence of one of the witnesses, Mrs West. He makes some points, too, on the video.
2. But without going into any detail this morning, it does seem to me that there is just enough here to warrant putting this application over to a hearing on notice, when Mr Cobb can have the opportunity of responding to these submissions.
3. The judge did not think much of them because, in her written reasons for refusing an application for permission, she records that, before her, the application for leave was based on the same specific ground, namely that the abuse could not have occurred on Christmas Day. She said that it was a finding that was appropriate on the evidence. She went on to say that, in addition, her foundation was explained to counsel in court on his application for permission; so she brought into her written reasons additionally the reasons that she had given in court.
4. We are told that that application for permission was made by Mr Cohen on behalf of JB. This morning Mr Cohen appears for both JB and SS. But it would plainly be helpful to have the transcript of the exchanges between counsel and the judge when she explained more fully her reasons for refusing permission. That transcript must be made available at the adjourned hearing on notice.
5. THE PRESIDENT. I agree. So we will adjourn this for an inter partes hearing on permission to appeal - only on the permission to appeal; we are not going beyond that at this stage.
Order: application for permission to appeal adjourned to a hearing on notice (two judges, preferably to include Thorpe LJ - time estimate 1 hour); transcript to be obtained for that hearing of discussion between counsel and judge on application for permission to appeal; if guardian wishes to be represented at inter partes permission hearing (as opposed to expressing her views in writing), guardian's solicitors to write to Thorpe LJ with reasons why there should be a third counsel in the application.