England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2009] EWCA Civ 714

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		Neutral Citation Number: [2009] EWCA Civ 714
		Case No: B4/2009/1098

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CARLISLE DISTRICT REGISTRY
(HIS HONOUR JUDGE HUGHES QC)

Royal Courts of Justice
Strand, London, WC2A 2LL

30th June 2009

B e f o r e :

LORD JUSTICE WARD
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IN THE MATTER OF R (a Child)

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(DAR Transcript of
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The Appellant appeared in person, with McKenzie friend Jeff Botterill.
The Respondent did not appear and was not represented.
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HTML VERSION OF JUDGMENT
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Lord Justice Ward:

This is a father's application for permission to appeal orders made by HHJ Peter Hughes QC, sitting as a judge of the High Court on 20 April of this year. The main battle joined before him was as to the mother's plans to move from the North of England (Cumbria/Northumberland) to Sussex, in order to take up a further course of study at Sussex University. The judge acceded to her request and permitted that relocation, but also put a restraint upon the father's making applications in respect of this little girl, who is some six years old, without leave of the court, and imposed that restraint for three years.

I have decided, albeit with a little reluctance, to adjourn this application to be heard on notice to the respondent, with the appeal to follow if permission is granted. I do so for these reasons. Firstly, with reference to the section 91(14) restriction on leave to apply to the court, whilst I see the eminent good sense of the judge's view that a period of peace and quiet would be good for everybody in this case, and I suspect for the father himself nothing would please him more than to have an end to this endless litigation, what troubles me is that the judge appears, from what I read in the papers, to have reached that conclusion himself and put it forward in a draft judgment which was to be handed down, and which the father was only able to see on the Friday before the case returned to court on Monday. He is a litigant in person and, although obviously intelligent, he does need to have a fair opportunity to take advice in order to meet an unexpected argument, and it is arguable that the procedure followed by the judge did not afford him that fair opportunity. For that reason, I would have been inclined, had that been the only matter, to grant permission on that narrow point.

As for the relocation, which is of course the more important matter from the father's point of view, this was a sympathetic judgment from a judge who had the great advantage, denied to the Court of Appeal, of seeing and hearing the parties and forming his own conclusions, many of which formed the basis of his ultimate judgment. As I have explained to the father, appealing findings of fact of that kind is a very difficult task in which to succeed. But I will adjourn the matter, so that the father can first of all try to refine his arguments and select what he truly considers to be the strongest of his reasons for appealing this judgment.

He is able to submit to me, with some force, that the error made by the judge was to give no, or certainly no adequate, consideration to his plans for this little girl's future, were she to stay, as she is at the moment, in the Carlisle area. He submits, and I see some force in the submission, that a true balancing exercise required the judge directly to address and directly to deal with, and to give reasons for rejecting, his plans compared with the mother's plans.

Attached to the father's skeleton argument is a helpful chart in which he analyses the advantages and disadvantages of each proposal. Not least among those advantages and disadvantages is the fact that at the moment he, the father, not only has been treated as a primary carer himself, but in fact the ability he has of flexible working hours, plus support from family and friends, gives him a considerable advantage over the mother's plans to undertake a course of study, where it is not clearly known whether the lectures and courses finish at 2:30 in the afternoon or at 4:30; and where no account has been taken, so he submits, of the need for coursework, which will engage her in full-time work from 9:00a.m. to 5:00p.m. He submits that the grandmother's evidence is such as to indicate her unwillingness or inability to be heavily involved in childcare; and so he submits this balancing exercise, vital to the proper judicial function, was not undertaken adequately by the judge.

I have concluded he should be permitted to renew those submissions, and for that reason I adjourn the matter. It can be listed on 15 July, and I have asked the Listing Office to reserve a half a day for that hearing.

Meanwhile, the difficult problem is whether or not to put a stay on the order. Ordinarily, I would not do so without giving the mother the opportunity to be heard on the matter; it is never right to make orders without giving the other side a fair opportunity to be heard. After all, this is the very reason why this father is appealing the section 91(14) restriction. But, time being short, I will grant a stay of execution of the order until the renewed hearing on 15 July or until further order. In fairness to the mother, I will add that she has liberty to apply to vary or discharge this order, but I do not encourage her to undertake that. Better to aim for a full hearing on 15 July.

This application is adjourned, to be heard on notice to the respondent, with the appeal to follow if permission is granted. There will be a stay on the execution of the order until the hearing of the renewed application for permission to appeal or further order; liberty to the respondent to apply to vary or discharge the order for a stay; half a day set aside for it; it can be heard by two Lords Justices. I will order a transcript of this judgment to be prepared at public expense to be available for the father and, of course, for the mother.

Order: Application adjourned on notice to the respondent.