Case No: B4/2010/1484
Neutral Citation Number: [2011] EWCA Civ 509
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EXETER COUNTY COURT 
(HIS HONOUR JUDGE TYZACK)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday, 11 March 2011

Before:

LORD JUSTICE THORPE
LORD JUSTICE ETHERTON
and
LORD JUSTICE TOMLINSON
- - - - - - - - - - - - - - - - - - - - -

In the matter of B (a child)

- - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -

Mrs Hannah Wiltshire (instructed by Hartnell Chanot & Partners) appeared on behalf of the Appellant Mother.

Miss Deborah Archer (instructed by Torbay Council) appeared on behalf of the Local Authority.

- - - - - - - - - - - - - - - - - - - - -
Judgment

Lord Justice Thorpe:   

1.	This appeal is largely about two brothers; one is C, who was born on [DOB] 2002, and his brother, Z, who is two years older, having been born on [DOB] 2004.  They are full brothers.

2.	The relationship between their parents was deeply unsatisfactory, resulting in care proceedings which have taken C down the road to adoption.  Happily for Z, the separation of the parents, and some real improvements in the mother's capacity, has resulted in him being brought up by her as a single mother.  When the freeing order was made in the county court the judge had before her a care plan which provided for open adoption, but in the event there has been no direct contact between mother and C since his placement.  She made an application for permission to bring a contact order application in 2007 and in 2008 it was refused by HHJ Tyzack QC.

3.	Mrs Wiltshire, who represents the mother in this appeal, says that the investigations and outcome in 2007/2008 were procedurally flawed in that it became a contested issue between the applicant mother and the respondent local authority rather than an application on notice, but unopposed as it should have been.  The issue returned on a fresh application before the same judge on 21 May 2010.  Again, he refused the application.

4.	There has been considerable investigation of the interlocutory stages and a number of points that were taken by Mrs Wiltshire in her grounds or her skeleton have, as a result of investigation and transcripts, fallen away.  So for me the only surviving point in the grounds or the skeleton is the submission that the judge was plainly wrong to refuse the grant of permission.

5.	The case comes to us by an order of Wilson LJ of 1 February granting permission, and we have had the benefit of a skeleton argument from Ms Archer for the local authority.  The complaint that the local authority have invested too deeply in an adversarial response to the application on 21 May is really not made good.  In the first place, the local authority were complying with directions that had been given by HHJ Neligan on 11 January and, furthermore, at the hearing Ms Archer, in her submissions, only suggested that the issues raised by the application would be better explored within the confines of existing post‑adoption services and would not helpfully be explored forensically.

6.	That position implicitly concedes that the mother's suggestion that she and Z should be, or might be, having direct contact was not without merit.  It was worthy of exploration, but the exploration should be non‑forensic.

7.	Having considered the judgment of the judge, I conclude that he was over‑influenced by the proceedings in 2007/2008 and by the judgment that he had given on 5 March 2008.  He was vividly reminded of all that because Ms Archer had handed in the skeleton argument that she had presented there and the social worker's statement for the purposes of that hearing as well as the local authority's note of the judgment of 7 March.  Further indication of the judge's reliance on history is to be taken from the fact that at the end he not only refused the application for permission but imposed a restriction under section 91.14 against any further application within a period of two years.

8.	So the real question for the judge on that day was (it being conceded that this is a family situation that merits sensitive investigation) on what principled basis could the mother be refused permission?  The grant of permission does nothing but allow her to cross the threshold.  Obviously what ultimately will unfold depends on the preparation and the investigation that would be carried out between the parties.  The parties would be the applicant and the respondent adoptive parents.

9.	It is unnecessary to express any view as to what will emerge or what will be the ultimate outcome.  It is in my view simply enough to see that there is something that merits investigation.  That is said on behalf of the applicant mother, but it can be said even more forcefully on behalf of Z who, after all, is a full brother who is only two years younger and who has a very strong Article 8 right to have a relationship with his brother as opposed to simply knowing of his brother's existence.

10.	So for all those reasons I believe that on this occasion the judge made the wrong choice.  He should have granted permission rather than refusing it, and I would set aside his order.  I would grant the mother permission under section 10.9 to bring an application.  I would join Z as a second applicant and I would direct if this be the right form of words, the appointment of a guardian on his behalf who will be able to advise the court in due course with recommendation and who in the interim will be able to carry out the necessary sensitive enquiry of the position of the respondents.

11.	So that is the order I would propose, having allowed the appeal.

Lord Justice Etherton:   I agree.

Lord Justice Tomlinson:   

12.	I, too, would dispose of the appeal in the manner suggested by my Lord, Thorpe LJ.

13.	I would just like to add, out of fairness to Judge Tyzack, who will no doubt be shown the order made by Wilson LJ on the application for permission to appeal, that in my view the suggestion, not ultimately pursued by Mrs Wiltshire, that the learned judge had been wrong to reject the submission that he should not hear the application, has proved to be totally unfounded.  In the skeleton argument in support of the application for permission to appeal which was before Wilson LJ it is suggested at paragraph 6 that HHJ Neligan, having heard argument on the point on the earlier occasion in January, expressed the view that the matter should not be heard by Judge Tyzack and that there should be a fresh pair of eyes to deal with it.

14.	When the matter ultimately came before Judge Tyzack on 21 May he was told by Mrs Price (who, I have no doubt, did not have access to a transcript of what had transpired before Judge Neligan) that Judge Neligan on the earlier occasion had said that this case needs a fresh pair of eyes, and it is no doubt in the light of the way in which it was put in the skeleton argument that Wilson LJ, when the matter was before him, expressed the view that it is arguable that the judge was wrong to reject the submission that he should not hear the application.

15.	Now that we have been supplied with a transcript of the argument before Judge Neligan on 11 January 2010 it is apparent that Judge Neligan did no more than to express the view en passant, at a stage at which he knew very little indeed about the nature of the proceedings, that sometimes a fresh view is possibly a good idea.  He most certainly did not, as is suggested at paragraph 10 of the skeleton argument in support of the application for permission to appeal, make a determination that the matter should be heard by a judge other than Judge Tyzack.

16.	I add those short comments purely in order to set the record straight and to make it clear that, for my part, I consider that criticism of Judge Tyzack was quite unfounded.

Order: Appeal allowed