England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM LUTON COUNTY COURT
(Her Honour Judge Pearce)

		The Royal Courts of Justice The Strand London Thursday 20 June 2002

Thursday 20 June 2002

1. LORD JUSTICE THORPE: This is an application by the father, who is understandably upset by the outcome of a hearing on 7 May before Her Honour Judge Pearce in the Luton County Court. He had applied for an adjournment and furnished a medical certificate. A friend, not I think legally qualified, attended the hearing on his behalf but the application for an adjournment essentially failed, since the judge only gave the father until the following morning to appear. In his absence, on the second day, the judge acceded to all the mother's applications, which effectively allowed her to move with the children from the Letchworth area to the Cambridge area, and reduced the father's contact from three weekends out of four to alternate weekends.
2. I have a number of concerns which require further exploration at an oral hearing on notice. The first, of course, is whether, given the importance of the issues before the court, the discretionary refusal of adjournment was within the wide ambit that the judge exercised. My second and profounder concern is whether she had sufficient regard to the wishes and feelings of the children. The welfare officer's report pointed up to some degree that the children were upset at the prospect of the implementation of the mother's plan. Since then, this court has been sent a letter from a firm of solicitors, Oldhams, and it is plain that the writer is the senior partner, a Mr Martin Oldham, who is a Recorder of the Crown Court and a member of the Law Society's Children Panel. He, on the instructions of the National Youth Advocacy Centre, has interviewed the children and ascertained that they are deeply attached to the status quo that has been on foot for the last three years, as I understand it.
3. Furthermore, the father has been able to put before me letters from Griffiths Robertson, a firm of solicitors in Reading. Mr Ian Robertson has had a number of meetings with the father and has endeavoured to obtain legal aid on his behalf. He has also been in touch with Mr Hinchcliffe of CAFCASS Legal. Mr Hinchcliffe has apparently said that CAFCASS Legal would be sympathetic to a request to act on behalf of the children if a retrial is ordered, but without commitment pending a sight of the papers.
4. Accordingly, I have today made an order that this application for permission be adjourned to be heard on notice at an oral hearing on Tuesday next, with appeal to follow if permission granted. That is tantamount to the creation of an appeal for which the father must plainly be represented at public expense. I hope that this order and judgment will resolve the difficulties that Mr Robertson has experienced and that the provisional refusal notified to him on 17 June will immediately be reversed to enable him to act for the father as a publicly-funded litigant and to instruct counsel on his behalf. Notification to that effect needs to come to Mr Robertson either today or tomorrow to ensure that he has proper time in which to brief counsel and to ensure that counsel has a proper opportunity to get up this case in preparation for Tuesday's hearing.
5. I have brought the case in at very short notice partly because of the importance of eliminating delay to avoid harm to these children, and partly because opportunity arises as a result of a fixture for Tuesday next coming out of the list.
6. I will only add to the orders that I have already indicated a stay of the order made in the court below pending determination of the case on Tuesday next.
7. This brief judgment I hope can be transcribed as a matter of some urgency, so that it can be made available to Messrs Foreman Laws, who act for the mother in his case. If that is possible, they will then know without any shadow of doubt the nature of the case that they must meet on Tuesday next.
ORDER: Application for permission adjourned, to be listed on Tuesday 25 June 2002 as an application with appeal to follow if the application is allowed. The order of 7 May 2002 to be stayed pending that hearing. Judgment to be expedited and transcribed at public expense, with a copy provided to Messrs Foreman Laws, the mother's solicitors. (Order not part of approved judgment)