England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(DAME ELIZABETH BUTLER-SLOSS)

		Royal Courts of Justice The Strand London, WC2A 2LL
		2 November 2004

Tuesday, 2 November 2004

1. LORD JUSTICE THORPE: On 23 January 2003 there was a highly charged scene outside court 32 at the culmination of a hearing before Singer J concerning the future residence of a boy, Forhad, then I think 10 years of age. The parties to the proceedings were his parents, Mr and Mrs Matin. The proceedings had been very long-running. Mr Matin, during the course of those proceedings has often appeared in this court as a litigant in person, and the sincerity of his feelings as to the well-being of his children has never been in any doubt.
2. The conflict outside the doors of the court drew in the CAFCASS officer, Mrs Raleigh, and Dr Pelling who was appearing on that occasion as Mr Matting's McKenzie friend. The judge himself was drawn into the conflict as he proceeded to leave the court at what he thought to be the conclusion of the proceedings. There is no doubt that this unfortunate episode was fuelled by the high emotions that gripped the parents and extended to those who had only a professional role to play in the day's proceedings. The geography also made its contribution, because the judge sitting in court 32 is unable to gain access to his court or leave his court and the private chambers situated behind the court, without passing through the public anteroom where the litigants and their representatives foregather in preparation for a case or during its aftermath.
3. It seems from what Mr Caldecott QC has told us today, that Singer J made a report of this incident to the Attorney-General so that he might take a decision as to whether or not to initiate contempt proceedings. The outcome was the issue of a summons on 11 July seeking disclosure of the material documents within the case of M v M, and also a declaration from the court that the initiation of contempt proceedings against Dr Pelling would not be inimicable to the welfare and interests of Forhad.
4. The declaration application is explained by a decision of this court in Re M (Contact Order: Committal) [1999] 1 FLR 810. During the course of his judgment Ward LJ (at page 824) defined what he described as "important features for the court to bear in mind in the case of civil contempt". The four features that he defined included as (2):

"The extent to which some other interest and that of the litigant is in need of protection. In this case there are the interests of the child which are to be upheld and the child's welfare which is to be placed at the forefront of the judge's consideration."

5. Mr Caldecott has told us that there is no set procedure, and the rarity with which an application of this sort has be brought perhaps explains why there is no need for a specific procedure. The application was therefore simply for a declaration in accordance with the decision of this court in Re M.
6. The application was served on Mr Matin on 14 July and, with what seems to me like extraordinary dispatch, on the same day Mr Matin filed a cross-application which includes an application for Dr Pelling to give evidence to the court at the hearing. Dr Pelling himself issued an application for directions as to the disclosure of documents which he wanted. On the 16th, Mr Michael Nicholls, then acting for the Attorney-General, served on Mr Matin his case summary. Part 3 of Mr Nicholls' document described the circumstances of the incident of 23 January in some detail. That was important, for the court needed to understand the circumstances of the asserted contempt in order to exercise the balance between the public interest in pursuing the contempt application and the interests of the child.
7. Mr Nicholls' summary of the incident concludes with a brief single paragraph, in which he says:

"Dr Pelling later wrote and published his account of these proceedings, which were conducted in private, in the April 2003 edition of the 'East London Father's Journal."

8. The Attorney-General's application came before the President on the following day. Thus it will be seen that there was a mere six days between the issue of the application and its determination, a mere three days between the issue of the cross-applications and their determination and a single day between the service of the Attorney-General's case summary and the judgment of the court.
9. The application and appeal which we today determine relates only to the first limb of the Attorney-General's application, the application for a declaration. There has been no criticism of the President's disposal of the Attorney-General's application for disclosure, nor any criticism of her determination of the cross-applications brought by Mr Matin and Dr Pelling. Thus in citing from the President's judgment, I will confine myself to those paragraphs that are relevant to the one issue raised by the appeal.
10. In paragraph 8 of her judgment, the President recorded that Mrs Matin, who was represented before her by counsel, did not take any objection to the Attorney-General's application and did not consider that it would be to the detriment of Forhad if committal proceedings were to take place. She then went on to consider Mr Matting's very different position. In paragraph 10, she directed herself that she had to weigh in the balance the welfare of Forhad, that being a very important consideration but not the paramount consideration.
11. In paragraph 11 she went on to say that, despite the forceful comments made by Mr Matin, she "... cannot see how on earth the issuing of these proceedings will be so detrimental to [this] boy that the administration of justice should not be permitted to take its course." That sentence revealed the determination of her discretion. However, in the following paragraph 12, she added:

"Mr Matin points out, absolutely correctly, that each case must be decided on its merits. This child, living as he does with his father, does not need to know about this case. It would be very sad if he does know, but I can believe that, even if he does not know, in the hot-house atmosphere that this sort of case generates he will hear about it. I have no doubt he will be sad if he is fond of and very appreciative of the good work that Dr Pelling does for him."

The only other paragraph that need be cited is paragraph 17. It is to this effect:

"There are two things I should say: Mr Matin asked that Dr Pelling should be able to give evidence today. In my judgment, it is not appropriate for oral evidence to be given on this sort of application which is clear to me without the need for such evidence."

12. Mr Matin duly issued his notice of application for permission to appeal against the grant of the declaration. Within his notice of application is a separate application to admit in evidence a statement from Dr Pelling, which is essentially a written statement of the evidence that Mr Matin had unsuccessfully sought to put before the President.
13. The notice of application was, for some reason that I do not understand, not listed for oral hearing in this court until nearly a year later in June 2004. I heard the oral application as a single Lord Justice. Having heard Dr Pelling as Mckenzie Friend, I adjourned for further oral hearing on notice to the Attorney-General with appeal to follow if permission granted. Very recently, the application has been extended by the issue of a satellite application, by which Dr Pelling seeks the leave of this court to represent Mr Matin as his Mckenzie Friend and to address the court on his behalf, and a second satellite application seeking the admission of a statement of evidence from Mr Matin himself.
14. As to the first, Dr Pelling has responsibly drawn attention to a judgment of Newman J in the Queen's Bench Division which calls into question Dr Pelling's fitness to act as a Mckenzie Friend. I would only say that, in relation to family appeals, long experience of Dr Pelling's contribution as a Mckenzie Friend leaves me in no doubt at all that he performs a very valuable service in a number of cases in which litigants in person are for one reason or another inhibited from presenting their own cases. Mr Matin is a case in point. Mr Matin is a man of considerable ability and intelligence, with a wide command of the English vocabulary; but he is not, in my long experience of his submissions to this court, the easiest of litigants to understand and there is no doubt at all that the dispatch of this application and appeal would have been very difficult had we refused Dr Pelling's application. Mr Caldecott adopted a position of neutrality in relation to this application, as he did in relation to the application for the admission of Mr Matting's evidence. Accordingly, we also admitted that evidence, for what it might prove to be worth, and we also admitted the evidence of Dr Pelling which was, as I have already recorded, incorporated within Mr Matting's notice of appeal. So those preliminaries completed we move to Dr Pelling's submissions.
15. His essential submission is that the core paragraph 12 reveals that the President exercised her discretion on a fundamental mistake of fact, namely that Forhad, since he lives with his father, had no need to know about the case, albeit the President recognised that, given the hothouse atmosphere, he might well hear about it. She clearly concluded that the circumstances were such as to insulate him from involvement and thus from harm.
16. The reality, as Dr Pelling has stressed and as Mr Caldecott in due course conceded, was that these contempt proceedings, if fully fought out, would involve Forhad giving evidence as a front-line witness, unless his evidence were agreed.
17. Dr Pelling's second complaint was that the President's refusal of Mr Matting's application for oral evidence was manifestly flawed, it could not be said that an application of that character did not call for oral evidence and that its disposal was clear without oral evidence.
18. His third complaint was that he had effectively been denied the opportunity of challenging the facts and circumstances set out in Mr Mac Nicholls' summary of case and accordingly the President had exercised her discretion on an inflated statement of the gravity of the contempt.
19. Taking those three submissions in reverse order, I see no force in the last. It is inevitable that the discretion must be exercised on a broad summary of the nature of the contempt. Challenge as to detail must await the determination of the contempt proceedings if subsequently issued. Mr Nicholls' summary was perfectly sufficient and perfectly fair for the limited purposes that required it.
20. As to the complaint that the President's refusal of the application to call Dr Pelling was plainly wrong, I would only emphasise that the discretion given to a judge at first instance in relation to grant or refusal of applications for oral evidence is extraordinarily wide. As a generalisation, it seems to me that oral evidence would be highly undesirable in circumstances such as this. However, regard must be paid to the extraordinarily unsatisfactory chronology which I have already emphasised. Given that the application was only issued on 11 July, there was simply insufficient time for the respondent, Mr Matin, and Dr Pelling as a cross-applicant, to put in written cases.
21. The President was hardly in a position to comprehend this to the extent that we are able to do with the advantage of so much hindsight. However it can be said that had the oral evidence of Dr Pelling been admitted, if only in the form in which it was presented a few days later by incorporation into the notice of appeal to this court, the President would have understood the inevitable leading role that Forhad would have to take in contempt proceedings, and so have been guarded from the erroneous assumption that she recorded in paragraph 12.
22. Dr Pelling's first criticism of the President's judgment is unanswerable, and Mr Caldecott has not sought to resist the submission that the unusual circumstances led the President into a false understanding of the basis upon which she exercised her discretion. There is no criticism, of course, of the President. It is simply one of the accidents of litigation, chances of which are much magnified when the court makes a determination in an area for which there is no set or recognised procedure and where the application has been brought before the court with such speed, speed which does not for any obvious reason seem to have been dictated by the needs of the case. Accordingly, my conclusion is that Dr Pelling's application for permission should be granted. His appeal should be allowed and the declaration should be set aside.
23. That leads to the question whether the case should be remitted or whether we should exercise our own discretion. It seems to me better that we should exercise the discretion. The whole procedure is an awkward one, where it is asserted that the contempt was a contempt within the judicial process, although not in the face of the court. Obviously, the Attorney-General can hardly return to the trial judge for a detached determination of the balance. It may in many circumstances be almost as uncomfortable for him to return to some other judge of the Division, given the relatively small size of the Family Division bench. And in exercising a discretion afresh, we have the enormous advantage of an extra 15 months of hindsight. We now see that the regrettable episode of January 2003 has not only initiated the contempt proceedings, authorised by the President, but also two separate actions in the Queen's Bench Division, one of them by Dr Pelling, the other one initiated by Forhad: one has resulted in a judgment of Leveson J, the other in a judgment of Newman J.
24. There are separate proceedings in relation to two articles which appeared in the April 2003 edition of the East London Journal. The one referred to by Mr Michael Nicholls in his case summary is the subject of publication contempt proceedings in the Family Division, sanctioned by the President, whilst the other article, which dealt with Dr Pelling's own family proceedings in the county court, is the subject of separate proceedings in the Queen's Bench Division for purely technical reasons.
25. Mr Caldecott's submissions to this court have been extremely helpful and eminently sensible. He has throughout emphasised that the Attorney-General does not adopt an adversarial position in relation to the issues that we determine today. He has made it absolutely plain that the Attorney-General is very much alive to the need to review the future of these proceedings in the light of subsequent events. He has indicated how important it would be to the Attorney-General's decision as to the future of these proceedings were Dr Pelling to accept some measure of responsibility for the escalation of the dispute outside court 32, and also to express some word of apology.
26. It seems to me that, balancing all these factors, a fresh exercise of the discretion so much later and with the command of so much material that was not before the President leads to the opposite conclusion, namely, that the declaration should be refused. In so saying, I emphasise the inevitable involvement of Forhad in the proceedings were they to continue to trial, and I give very little weight to the further evidence of Mr Matin which we have admitted. However I am prepared to accept that Forhad is settled and doing well and I infer that were he to be involved in a re-enactment of the court 32 fracas it would be to his detriment.
27. To reach the decision which I do sets no sort of precedent for any other case. As Mr Caldecott has warned, no one should think that simply by saying that contempt proceedings would involve the child provides a potential contemnor with any freedom from process. There is no difficulty in severing the issue of conduct in the vicinity of court 32 from publication contempts. The declaration goes only to that part of the case summary that describes the fracas. The declaration does not extend to the publication contempt in the April issue. That must be resolved, as must be the proceedings in the Queen's Bench Division, with which we are not in any way concerned, in due course.
28. I only record that Dr Pelling himself made plain to us today the extent to which he relishes the continuation of the Attorney-General's publication contempt proceedings since he regards the underlying legal issues as of fundamental importance; and he is confident of the rectitude of his legal submissions. So, having drawn a clear distinction between the conduct contempt and the publication contempt, I would end the pursuit of the conduct contempt.
29. LORD JUSTICE SCOTT BAKER: I agree that a good deal of water has passed under the bridge since the order of the President, and I emphasise that the unique circumstances of this case should not be regarded as setting a precedent for any other case.
30. LORD JUSTICE WALL: I also agree. I would, however, like to add a word or two about the procedure identified in the decision of this court in Re M (A Minor (Contempt of Court: Committal of Court's Own Motion), to which my Lord has referred.
31. The application dated 11 July 2003, which the Attorney-General made to the President sought:

"An indication whether the interests of the child Forhad Matin are such as to preclude the institution of proceedings for contempt against Michael John Pelling."

That request for an indication turned, of course, into a declaration that the interests of the child were not such as to preclude the institution of proceedings for contempt.

32. Mr Caldecott for the Attorney-General tells us that such an application does not derive from the Civil Procedure Rules or from the statute, but from the decision of this court in Re M. In that case, the judge had initiated proceedings of his own motion in relation to a mother's disobedience to contact orders which the judge himself had made. There was no question of any contempt being committed in the face of the court or any contempt by a third party.
33. Guidance as to the practice which a judge should adopt when minded to initiate proceedings for contempt of his own motion was given in the reserved judgment of Ward LJ, and as my Lord pointed out, at paragraph 40 of the judgment he identified a number of features which the court should bear in mind in such circumstances, one of which was the extent to which some interest other than that of the litigant is in need of protection. In that case, said Ward LJ, there were the interests of the child, which are to be upheld, and the child's welfare, which is to be placed at the forefront of the judge's consideration.
34. Turning to the facts of the Re M, Ward LJ identified a number of factors which it was important for a judge to take into account when deciding whether or not to provided of his own motion. Amongst these was the interests of the children. Under this heading, Ward LJ said:

"The judge was, of course, uniquely well placed to assess what the welfare of the children demanded with regard to the maintenance of a link with their father through contact, but here the judge was assuming that coercive powers of the court would achieve that desired result. He did not, however, appear to consider what effect a committal application (carrying with it the possibility of a prison sentence) may have had on the children, especially in the light of his findings about the mother's proven capacity to influence the children against the father."

A little later on Ward LJ goes on to say this:

"The committal proceeding do not carry such a certain outcome of good for the children such as would justify the judge proceeding of his own motion on the basis of their benefit. Since there was no urgency, it would have been better for him to have invited the Official Solicitor to represent the children in order to give him the opportunity to investigate where their bests interests lay in the circumstances then prevailing."

That passage is now of historical interest only, given that the official solicitor no longer exercises that particular role.

35. The circumstances of the instant case are, as my Lord has pointed out, highly unusual. Nothing that I say is intended to inhibit a judge from taking strong action where circumstances require such action to be taken. In my judgment, Singer J acted entirely correctly in referring the matter to the Attorney-General, and the Attorney-General has acted entirely properly in pursuing it. But I think it reasonably clear that Ward LJ's remarks are directed to the judge who is proposing that committal proceedings be instituted, not to another judge to whom the application may be referred. In the instant case, the judge "uniquely" well placed to assess what the welfare of Forhad Matin demanded was Singer J; and, taking a slightly different view to that expressed by my Lord it would have been, in my judgment, preferable, had the Attorney-General entertained any doubts about where the interests of the child lay; or whether the interests of the child would be adversely affected in relation to the proposed application to take proceedings against Dr Pelling; or if he thought that Singer J had not taken this factor fully into consideration when reporting this matter to him, for the Attorney-General to have returned to Singer J on notice to Forhad's parents and to Dr Pelling to ask for guidance from that judge.
36. Inevitably, the President was not as well-informed as Singer J and, as we have seen, reasonably, but erroneously, thought that (on the material available to her) because Forhad Matin was living with his father he did not need to know anything about the case. That said, it seems to me that any general guidance in a case of this nature is inappropriate, given the extraordinary nature of the facts. I mention it simply because it seems to me that there are substantial factual differences between this case and Re M.
37. However, like my Lords, I fully agree that Mr Matting's application for permission to appeal against the declaration made by the President on 17 July should be granted and the appeal should be allowed, and the President's declaration set aside for the reasons given by my Lord Thorpe LJ. As the discretion now falls to be exercised by the court I, too, would exercise it in the manner indicated by my Lord. Whilst a line can be drawn under any further forensic examination of the events of 23 January outside court 32, the publication contempt of court proceedings will of course remain in being.

(Application granted; appeal allowed; Respondent do pay the Appellants' costs in the sum of £755); further orders as per agreed minute of order).