England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
His Honour Judge McFarlane
Principle Registry, Family Division

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/05/2007

Lord Justice Wall :

1. As these are ongoing proceedings, I propose to write this judgment in anonymised form.
2. The applicant, Mr. AM, is the father of three children. They are K, who was born in October 1991; A born in February 1993 and S born in August 1995. K and S are girls: A is a boy. All three children are the subject of care orders in favour of a local authority made by McFarlane J on 17 May 2006. K is living with foster parents, and it appears to be the local authority's care plan that she will remain in that placement until such time as steps are taken for her to leave the care system.
3. The applicant seeks permission to appeal against an order made by the same judge on 30 January 2007. By that order, the judge dismissed an application made by K for permission to apply for a contact order. K was represented before the judge by counsel, as was her mother. The local authority was represented by a solicitor, and the applicant was in person.
4. The catalyst for the application before McFarlane J on 30 January 2007 was a letter written by K to the judge dated 9 July 2006. In it, she complained that the local authority had not permitted her to have sufficient contact with A and S, who were in separate placements. The letter also stated in terms that K wanted "a residence order for myself, my brother and sister" in favour of the applicant. She went on to say that this was what she had wanted for nearly 10 years, since her parents divorced. She pointed out that when she was 16 she was "going to have to move anyway" although her brother and sister would have to wait longer. She complained that her mother had been "continuously abusive" and that the three children were in care because of her. She said that her father's parenting had never been assessed and that he had never harmed them. That, in short, was why she wanted a residence order in her father's favour.
5. Prior to writing to the judge, K had written letters to the local authority, to which the latter had not responded. The judicial response, through the judge's clerk was to suggest that K should make an application for permission to apply for a contact order. This she duly did, and it was this application which came before McFarlane J on 30 January 2007. As I have already stated, the judge refused it.
6. The applicant's application for permission to appeal against the judge's order is, at first sight, somewhat curious. The order affects K, but she had not sought to appeal against it. Furthermore, the judge records in paragraph 14 of his judgment that the applicant and K were "diametrically opposed" on the question of whether she should be given permission to apply for contact.
7. When I heard the applicant's application for permission to appeal on 3 April 2007, I pointed out that in the judgment which was the subject matter of the application, the judge had made references to a previous. Lengthy, reserved judgment which he had given in the care proceedings on 17 May 2006. He described that judgment being 40 pages and 238 paragraphs long. That judgment was not, however, in my papers and I accordingly offered the applicant a choice. I would either proceed to adjudicate on his application then and there: alternatively, he could address me on the application, after which I would reserve judgment and give him the opportunity to send me the judge's judgment given on 17 May 2006. I would then convey my decision to him in writing.
8. The applicant opted for the latter suggestion, and with commendable promptness sent me a copy of the judgment on the same day. It arrived in the office on 5 April 2007, to be followed by a second letter date 6 April 2007 attached to which was an important missing page of the judgment. The applicant also took the opportunity to send me other documents, including the transcript of a judgment on residence and contact given by Judge Corrie on 2 May 2003, all of which I have read.
9. I need to offer an unqualified apology to the applicant for my inability to attend to this judgment before today. This has been due to intense pressure of work, and the length of time it has taken to read the new material and re-read the papers previously sent to me.
10. By further letter dated 2 May 2007, the applicant brought me up to date. He advised me that on 19 April 2007, McFarlane J had heard and dismissed an ex parte application by the applicant for permission to apply for a residence order. He also told me that applications by A and K to discharge the care orders were to be heard on or about 10 May 2007. There was other information contained in the letter which I need not recite.

What the applicant wants

11. The criticisms which the applicant makes of the judgment given on 30 January 2007 relate not so much towards what the judge did, but what he did not do. What the applicant seeks – and has always sought – is a residence order in his favour, with "associated financial relief". The detail of that relief is set out in a document at page 67 of the bundle of papers, and which I need not recite. His principal complaint, as I understand it, is that the judge had the power under section 10(1)(b) of the Children Act 1989 to make a residence order of his own motion : that, the applicant argues is what the judge should have done. It was what K wanted: it was what the applicant wanted. All the judge had done was to make some ineffectual criticisms of the local authority, none of which addressed the critical issue.

Conclusion

12. Having read the background material helpfully provided by the applicant, I am quite satisfied that an appeal by the applicant against McFarlane J's order of 30 January 2007 would stand no reasonable prospect of success. Although K's wishes were clear from her letter, what was before the judge was her application for permission to apply for a contact order. The judge dealt with that application in a manner which cannot be faulted – indeed, it does not appear that the applicant wishes to challenge that order.
13. In my judgment, given the judge's overall knowledge of the case – as demonstrated in particular in his judgment of 17 May 2006 - it is quite unreal to think that he could have torn up all that had gone before and made a residence order of his own motion in the applicant's favour on 30 January 2007. The effect of a residence order is to discharge any existing care order. That step would require great thought and a careful evaluation of all the available evidence. It is simply impossible to criticise the judge for not embarking on that course on 30 January 2007. The judge dealt immaculately with what was before him, and an appeal against his decision is, in my view, incapable of being mounted by the applicant.
14. As the applicant has appreciated, it he wishes to alter the status quo he must apply to the judge on proper notice and with proper evidence. I am not surprised to learn that the judge has subsequently refused to entertain an ex parte application by the applicant for permission to apply for a residence order. This is ground which has been covered many times.
15. The applicant must not misunderstand the very limited powers of this court. The applicant has to persuade me that he has an arguable appeal against the order made by the judge on 30 January 2007. That is the limit of my remit. I am not concerned with anything else. It is plain to me that the applicant does not have an arguable appeal, and that his application for permission to appeal must be dismissed.
16. The application for permission to appeal will, accordingly, be refused.