England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND AN EXTENSION OF TIME

		Royal Courts of Justice Strand London WC2 Monday, 18th March 2002

1. LORD JUSTICE THORPE: Miss Willbourne renews her application for permission to appeal a judgment given by His Honour Judge Bloom QC on 9th July 2001. I delivered a short judgment on 13th December which was designed to explain to all that any investigation of whether or not the future of these two boys, S and A, should be Egyptian or English was to be undertaken by a judge in the court of trial, giving due weight to all the information and reflecting the changes of circumstances since 9th July 2001. On 13th December I said the judge should have three alternatives to weigh: both boys to stay with the Williams, both boys to go to Egypt or the boys to separate. But steps need to be taken to bring that issue before the court. The obvious step is the issue of an application to discharge the care order in respect of S. The natural person to make that application must be Mrs Eldidi. She is represented by Moussa Patel & Co, and she has public funding.
2. That judgment was given in the knowledge that Judge Bloom would take a directions hearing in Manchester on the following day. We have a transcript of his judgment given on 14th December. The order that he made on that occasion recited only the relevant paragraphs too the effect that Miss Willbourne's application for assessment of the aunt and uncle by an identified expert be adjourned to 7th January: and next, that any application by the aunt or uncle to discharge the care order in respect of S to be made within 14 days and, in the event of issue, to be listed for directions on 7th January. The 14-day period would have expired on 28th December and would have encompassed the Christmas shut down, so it is perhaps not surprising that no application was issued within the 14-day period set.
3. The parties re-assembled on 7th January and, again, we have a transcript of the proceedings on that day. The order issued by the judge, insofar as it is relevant, provided that the case be transferred to the Principal Registry, that the aunt should have an extension of 7 days within which to issue her application and 28 days within which to file a statement. The judge also provided that the aunt's provisional application be listed for hearing on 7th May before Judge Bloom with a time estimate of one day. Again, the 7-day extension was not honoured, the application not being issued until 22nd January.
4. Miss Willbourne said this morning that during the period between 13th December and 7th January the aunt dispensed with the services of Moussa Patel and appointed in their stead another firm who Miss Willbourne describes as a very well known firm. Certainly they seem to have had difficulty in issuing the application. Miss Willbourne tells me that when they attempted to issue on 7th January in the appropriate place, namely the Principal Registry, they were told that they had to issue in Manchester. I can understand that on the 7th, news that the judge had transferred the case to the Principal Registry had not percolated on to the file.
5. The order of 7th January says nothing about the guardian's application for assessment by an expert, which had of course been adjourned over for determination on 7th January. The order being silent, it is necessary to have a look at the transcript which shows at page 14 the judge saying in relation to the application:

" ..... I am not formally going to rule on it. I have indicated my view but Miss Barnett says maybe something will come out in the aunt's and uncle's application, I should order them to file a statement in support, which I would have to do before ruling on it, and then I can consider again any question of any further assessment."

6. That citation shows that the order of 7th January should, for completeness, have carried a paragraph adjourning over the application by the guardian for future listing and determination. Miss Willbourne has suggested that her application has been adjourned over to 7th May. There is absolutely no support for that premise either in the order itself or in the transcript. Furthermore all reason is against that inference. The 7th May has been fixed as the final hearing. It would be completely vain to review the application for assessment at the final hearing.
7. It is perfectly obvious to me that the judge was entirely justified in refusing to rule on the assessment until there was in being some application to which the assessment could attach. That transpired on 22nd January and the nature of the application was presumably clarified by the filing of the statement on 4th February. That surely was the moment for the guardian to restore her application for the instruction of an expert. In my judgment, that needs to be done as soon as possible. If the fixture of 7th May is not to be aborted, and assuming that the court orders the assessment, the expert needs to be getting on with his job.
8. There is nothing in any of the papers that I have surveyed this morning to suggest that Judge Bloom has reserved directions to himself. In any event, it seems to me that his decision to transfer the case to the Principal Registry is inconsistent with any reservation of the case to himself for directions. Litigation is this field is expensive enough without parties having to trail off to Manchester to get directions in PRFD cases. So, an inevitable consequence, in my judgment, of the transfer to the Principal Registry is that any necessary decision as to whether an expert is needed on the cultural issues should be taken by one of the district judges here. The application should be listed as a matter of priority and quickly decided.
9. Before completing this review of events since 13th December, I would only observe that Judge Bloom has not been provided with a transcript of my judgment of 13th December and may not have been aware of the passage which I have today cited. Insofar as he demonstrates an understanding of my judgment of 13th December, in his observations on the following day and on 7th January it is only to record the notion that I had expressly approved his judgment of July 2001 by saying that it was reasoned and without flaw. That is of course only a provisional view and only half the picture. Obviously, the fact that I did not dismiss the application for permission in its entirety is a fair indication that I considered that the guardian's commitment to a review of the possibility of an Egyptian future for these two boys should not fall between the stools of the court of trial and the Court of Appeal.
10. In conclusion, I am still of the view that the responsibility for deciding that question must properly be left to the court of trial. The arrangements made by the judge on 7th January are intended to set up just such a trial. Accordingly, the right course for this court today is once again to defer to the court of trial. I would not entertain this application for permission on the material that Miss Willbourne places before the court this morning.
Order: Application dismissed