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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> M (Children), Re [2002] EWCA Civ 485 (11 March 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/485.html
Cite as: [2002] EWCA Civ 485
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(MR JUSTICE HOLMAN)
Strand London WC2 Monday, 11th March 2002 |
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B e f o r e :
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| N - B C M (Children) |
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Smith Bernal Reporting Limited
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MR P STOREY QC (instructed by Wellers) appeared on behalf of the First Respondent
MR D HOUSTON (instructed by the London Borough of Camden) appeared on behalf of the Second Respondent
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- LORD JUSTICE THORPE: This is an application for permission to appeal an order made by Holman J on 15th February 2002 in relation to a little boy named M, who is almost three years of age. It is unnecessary to go into the range of the hearing in the Family Division, since it largely concerns older half-siblings whose future was ultimately resolved without any great difficulty.
- In relation to M it was necessary for the judge to decide whether to make care or supervision orders as sought by the local authority and the guardian. He came to the conclusion that he would not. He rejected their case that the section 31 threshold had been made out in relation to M. There remained, though, the need to decide, as it were in a private law dispute, whether M should remain with Mr Gold or whether he should return to Mr Cummings.
- M had been cared for by his mother and father until the sad death of his mother. Thereafter, he was cared for by his father alone until the local authority intervention when he moved into the daily care of Mr Gold. That event was relatively recent prior to judgment, and accordingly, there was on any ordinary assumption, the likelihood that M would return to his father rather than remaining with his maternal uncle. As Mr Storey has pointed out, there is a considerable difference between the position of M and the position of his older half-sisters, Sophie, Emmanuelle and Gabrielle. They are orphans, which he is not. They are black children, whilst he is of mixed race. Furthermore, there is a considerable age difference between them since even Gabrielle, the youngest, is some seven years older than M.
- The case for maintaining what was a relatively recent status quo rested, perhaps partly, on the need for continuing inter-sibling relationship. M was closely bonded to the older girls, and the older girls were not going to have any contact with M's father in the future. But the real impediment to disposal on what might be described as conventional lines, was the advice and recommendation of the experts in the case; Dr Black and Dr Arsen, instructed by the guardian ad litem, and Dr Freedman instructed by the local authority.
- Mr Storey, in resisting this application, has laid great stress on the written opinion of a Dr Reeves, but his only involvement was back in 1994 when he was seemingly advising as to whether or not Mr Cummings should be released on licence. So for the purposes of the decision facing the judge on 15th February there can be no doubt that the only witnesses who were truly child-centred and truly involved in this litigation were the three distinguished experts whom I have already named.
- The essential case that Mr Gold seeks to argue is that the judge either wrongly or without sufficient reasoning rejected their combined opinion. Accordingly, his decision is flawed; alternatively plainly wrong.
- Mr Storey has prepared a comprehensive skeleton in which he has emphasised all the obstacles and pitfalls in Mr Gold's path. He has said, perhaps with a degree of advocates' licence, that this would be a hopeless appeal in front of a full court. It may be that in the end the appeal will fail on the basis that this very experienced judge reached a discretionary conclusion in a difficult case. On the other hand, I am in no doubt that the arguments that have been marshalled by counsel for Mr Gold merit a fuller and profounder consideration than can be given on a relatively brief hearing of an application for permission. I only add that whilst Mr Houston has very helpfully attended on behalf of the local authority, and at this stage adopted a position of some neutrality, it is clear from a letter written by the guardian's solicitor that the guardian is sufficiently concerned to indicate that she will be arguing that an appeal in relation to the rejection of the residence order application brought by Mr Gold should be allowed. So plainly there must be an investigation by the full court.
- Accordingly the only issue for decision today, the application for permission, is decided in the applicant's favour. Permission is granted. The slight extension of time necessary is also granted. I will say that the appeal must come before a court of three Lords Justices, with a time estimate of one day; and I direct that the appellant file with the court transcripts of the relevant oral evidence of the three experts, namely Drs Black, Freedman and Arsen relied upon either by the appellant or by any other party to the appeal. Those transcripts must be lodged at least 14 days before the fixed date of the appeal. Any question of costs can be reserved.
Monday, 11th March 2002