England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2008] EWCA Civ 135

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		Neutral Citation Number: [2008] EWCA Civ 135
		Case No: B4/2008/0146

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL COUNTY COURT
(HIS HONOUR JUDGE BARCLAY)

Royal Courts of Justice
Strand, London, WC2A 2LL

12th February 2008

B e f o r e :

LORD JUSTICE WALL
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IN THE MATTER OF N-O (CHILDREN)

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(DAR Transcript of
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THE APPELLANT APPEARED IN PERSON
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED
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HTML VERSION OF JUDGMENT
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Lord Justice Wall:

Ms G is the mother of three children. Two of them are a boy and a girl, M and C. M is now twelve and C is eleven. Ms G seeks permission to appeal against an order by HHJ Barclay on 20 December 2007, in which the judge was dealing not only with M and C, but Ms G's third child, CH, who was born on 27 February 2005. The children have different fathers. The father of M and C is a man called SO; and the father of CH is a man called SFN. What the judge did on 20 December in proceedings which had been initially separate but were consolidated in front of him, was to make residence orders in relation to them M and C in favour of their father, SO; and in relation to CH the judge made an interim care order in favour of the Gloucestershire County Council to last until 14 February 2008.

The interim care plan was that CH would be placed with her maternal grandparents, Mr and Mrs G. Mr and Mrs G have, as I understand it, made an application for residence of CH, and that is a matter which is coming back before the judge on 13 February. As I indicated a moment ago, the initial care order was made until 14 February. The judge, however, also made an interim supervision order in relation to M and C, again to last until 14 February. I am told, however, this morning by Ms G that the 14 February hearing has been brought forward to tomorrow.

It would therefore appear that all the orders made by the judge are temporary; and he is due to review them tomorrow in the local county court. He directed the local authority to file what he described as an updated section 37 report by 18 January 2008. Ms G tells me that she forwarded a copy of that report to the court. Unfortunately, it has not reached me. What I do have, however, are the following: firstly, the original section 37 report from the local authority: that is dated 21 November 2007. I also have the three CAFCASS reports, the last of which was dated just before the hearing on 10 December 2007. I also have a report from a Dr DT who made an assessment of SFN. The judge in his judgment explains what he did by reference to the reports that were before him and also by reference to his concerns about Ms G's mental health. The recommendations before him from the local authority and the guardian were for the two children, M and C, to live with their father. CH presented a much more difficult problem in the judge's perspective, but his view was that the local authority, having indicated its intention to institute care proceedings in relation to her with the care plan that CH should live with her maternal grandparents, the judge made an interim order to that effect which, as I say, he will review tomorrow.

Ms G seeks to appeal against the judge's order on a number of grounds. First and foremost, she says, "Well, the children have always lived with me and they were being successfully brought up. There was nothing wrong with the way I was dealing with them and caring for them. They were happy, successful children". It is plain that in relation to SFN and, indeed, it would appear equally clear in relation to SO, that there was domestic violence from which Ms G suffered during the period of their respective cohabitations and, in essence, Ms G says, "Well, these reports are wrong; I am a successful competent mother. I should not have had my children removed from me and they should be immediately returned".

As I put to Ms G earlier this morning, her difficulty, it seems to me, is that the judge has made interim orders which he is about to review. If I were to grant permission to appeal, the appeal plainly could not be heard before the review, and it would seem to be sensible for the judge to conduct his review and reach what I imagine would be more permanent decisions.

Ms G must also understand that, particularly on an interim basis, a judge, such as HHJ Barclay, has a very wide discretion to exercise his powers under the Children Act and, in this case, he was supported by both the children's guardian and by the local authority. It is very difficult, therefore, for this court, however strongly Ms G may feel about it, to say that the judge was plainly wrong in what he did; but in any event, as I say, what he did was temporary, and he was going to review the situation once it was clear to him.

My view, therefore, and as I put to Ms G, is that this application, even if it got over the threshold for permission, is premature; and in my view what Ms G should do is go to court tomorrow, argue her case before the judge, see what the judge says and, if she continues to disapprove of, or disagree with, what the judge has done then she should seek permission to appeal, whatever order he makes tomorrow. If I were to grant permission today it would be overtaken by events, and in my judgment that would not be an appropriate action for his court to take. This application, therefore, will be refused on two grounds. Firstly, it seems to me that on an interim basis the judge was exercising a discretion which he was entitled to exercise, but in any event, even if he was wrong, he is going to review the matter tomorrow and it is therefore premature to seek to appeal what is essentially an interim order. These applications will therefore be refused.

I propose, however, to direct that a copy of what I have just said is transcribed and sent to Ms G so that she has the opportunity to study it. That will be done at public expense, and she will therefore be able to see why, on reflection, I take the course that I have.

Order: Applications refused