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
(Mrs Justice Bracewell)

		Royal Courts of Justice Strand London WC2 Monday, 15th April 2002

1. LORD JUSTICE WARD:There are two applications listed before us this morning brought by Mr Wilkinson. The first in point of time is for permission to appeal against orders made by Mrs Justice Bracewell, first on 18th October 2001, when the order as drawn was that the applicant, Mr Wilkinson, should be committed to prison:

"... for a period yet to be determined for Contempt of Court, at the present to be remanded in custody."

2. The second part of that application is against the order the learned judge made on Monday 22nd October, when she sentenced him to six months in prison for contempt of court "in the face of the court".
3. He did not seek permission to appeal against that order until very late, 2nd January 2002, and he therefore needs an extension of time to appeal. He does not need permission because it is against a committal order. The reasons why he is late are explained by him in the notice of appeal. He says that when he was in prison the prison authorities and the legal aid officer gave incorrect and insufficient information to lodge an appeal from within the prison. It appears, piecing the story together, that he was advised to bring the appeal in the Court of Appeal Criminal Division and so applied at first to the office of the Registrar of Criminal Appeals. They wrote to him on 19th November, in a letter which he has now produced for us, and they pointed out that perhaps he should come here, but if not, they gave him directions as to what else to do. There was a further letter from the Court of Criminal Appeal on 5th December, but I have not seen that document. The applicant also says that the solicitors appointed by the court to represent the defendant, not being solicitors of his own choosing, ignored all correspondence from him, there being four letters (two from in prison and two thereafter) when he requested certain information and certain papers; and it seems that he only received the documents on 19th December, after a fifth and final letter to the head of the department.
4. Although this is a long time, it is an appeal against a committal order. He has either served that term or has purged his contempt (I am not sure which); but had he still been in prison, I have no doubt at all that we would have extended the time, and for my part I would do so now. I do so because it is possible that quite important points of practice and procedure might arise on the appeal. They are set out in a letter the court received late on Friday from the Official Solicitor, who has sought counsel's advice on the lawfulness of the detention of Mr Wilkinson on Thursday 18th October. It may also be that human rights issues are involved relating to the appointment of lawyers to represent a contemnor, or alleged contemnor, and the extent to which that may offend article 6 of the Convention, which speaks of the entitlement to legal assistance of his own choosing. Those are matters which are worthy of argument and it may assist the court, therefore, to have this appeal determined to settle those questions.
5. I would therefore extend the time, but I would say that, if the Official Solicitor does not now choose to intervene and indicates by the close of business this Friday whether he will intervene or not, I would ask the Attorney General and/or the Treasury Solicitor to consider appointing a friend of the court to assist us in the legal arguments that arise. I imagine among the other questions will be the status of a contempt in the face of the court; whether it is civil contempt or criminal contempt and what difference, if any, that may make to the application, in whole or in part, of article 6. That is but one of the matters that may be worthy of consideration.
6. Although Mrs S, who was the respondent in the proceedings in the court below, has, as a party, to be served with all the papers in this appeal, I make it plain that this court will not think it discourteous if she does not attend or have counsel represent her. If she wishes to be represented, she of course is entitled as of right to be represented; but if she feels that this is a wholly academic dispute of no importance to her, for my part I will be wholly sympathetic and would excuse her non-participation in this appeal.
7. Finally, there is a question about the adequacy of the transcripts of what took place in the court below. It is for the appellant to put before the court transcripts of what occurred. It is for him to indicate where and how they are unsatisfactory. If there is a master tape of what was happening in addition to a stenographer's note of proceedings, he can apply to the court below in Manchester. It is not, at the moment at least, a matter for us. It may be the best course for the Official Solicitor to assume the burden of that inquiry and seek a release of any tape, or the listening to of any tape in his presence or his representative's presence, so that there is at least an agreed note of what has happened and where the tape may or may not be defective. His application to us is dismissed.
8. So far as the committal application is concerned, I extend the time and the appeal moves forward accordingly.
9. The second application relates to directions that were made by Mrs Justice Bracewell on 18th October. She was dealing with proceedings under the Family Law Act 1986 relating to the paternity of at least one of the children, if not two. I do not have any papers relating to that application and have had some difficulty in seeing exactly what the issue is. On one view of what has been put before us in the fax communications received today, there is no dispute about paternity, and so I am somewhat at a loss to understand exactly what is happening.
10. The judge on 18th October made an order for directions, the case having been referred to the High Court for her consideration. The paragraphs to which Mr Wilkinson seems to take exception are paragraphs 4 and 5, namely:

"4.The respondent shall file a statement in respect of the application for Declaration of Parentage within 21 days and the Applicant within 21 days thereafter.

5.This matter shall be set down for directions in 14 days from the date hereof, for a final Hearing date to be allocated before a circuit Judge."

11. Then the order continues (and this is also a matter on which the applicant wishes to be heard):

"AND IT IS NOTED this is not a case where it is felt appropriate that the children should have separate representation or should be further interviewed by CAFCASS or any other expert witness."

12. The application to appeal that order was not made until (as appears from the date stamp on the application before us) 5th February. The reason given for that delay is said to be this:

"I was hopeful that the Manchester County Court might re-consider the issue of allowing the Child as a minor under disability and respondent in his own right to be legally represented when it made further directions on the 25 January 2002 being the first hearing after this order was made to save an appeal process. Unfortunately it was drawn to my attention at this hearing on the 25 January 2002 that because this order was made in a higher Court being the Manchester High Court the County Court would not review any decision of the higher Court so this order is immovable even though it was made in error and in departure from Court rules namely [Family Proceedings Rules] 1991."

13. Mr Wilkinson does not attend today but, at my invitation, he was at liberty to put in written arguments, and he has done so. May I say at once that, in his dealings with Mrs Di Mambro last week, he behaved himself thoroughly courteously and thoroughly reasonably, and I express my gratitude to him for that and hope that he feels, likewise, that we have dealt properly with him.
14. The difficulty I have here is that, whatever merit there may be in the fact that a respondent (as the child apparently ought to be) should have separate representation, the applicant gives no adequate reason why time should be extended. He is very, very late. He is not unversed in the ways of this Court. He knows the time limits for ordinary family proceedings, having been here before, and I can see no sufficiently good excuse to justify the extension of time.
15. The orders that he seeks to appeal, in so far as it is directed that a statement be filed and that the matter be heard in the County Court, are case management decisions made by Mrs Justice Bracewell in the exercise of a discretion which can only be attacked if it was plainly wrong. I can see no possible prospect of his succeeding in showing that those orders exceeded the generous ambit within which people are reasonably entitled to disagree, and the appeal would have no prospect of success. There is more force, perhaps, in the argument that the child should be separately represented because the child is a respondent. But if it is also correct that the paternity of the child is not in fact in issue, then I am at some loss to understand exactly what is to be gained from these proceedings. If they are in fact non-contentious, then I would expect that the court can deal perfectly satisfactorily without the child being represented, and the child's human rights will be well looked after when the judge has the whole matter before him or her for final determination.
16. I would not extend the time in the second application and would dismiss it.
17. LADY JUSTICE HALE: I agree.
Order: extension of time for appealing granted in contempt of court proceedings; extension of time refused and application dismissed in family proceedings; transcript of this judgment to be made available to Mr Wilkinson, to the Official Solicitor and to Mrs S, the Attorney General to be given a copy if the Official Solicitor declines to intervene.