England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEICESTER COUNTY COURT
(HIS HONOUR JUDGE LEA)

		Royal Courts of Justice Strand, London, WC2A 2LL
		8th November 2012

Lord Justice Thorpe:

1. This is an application for permission with appeal to follow, and I say straight away that permission is justified and we should rule on the consequential appeal. It comes from HHJ Lea who, sitting in Leicester, decided issues as between mother, father and two relevant local authorities on the 25 November of last year, 2011, and the order which he made on that day, following a hearing on submissions only, was seemingly perfected on that day. He made a supervision order in relation to the placement of the little boy, A, born on [a date in] 2009, with his mother. More importantly for the purposes of today, he refused three applications brought by the Official Solicitor on behalf of the father. The first application was for direct contact, the second for parental responsibility, and the third for a change of A's surname to create a hyphenated double barrel to bring together the surname of each of the parents.
2. We have a transcript of the hearing, and we see that the main issue for decision was whether or not there should be direct contact initiated, there having been no previous contact. It is quite clear that, dependent on the view the judge took of that issue, it would hang to some extent on the applications for parental responsibility and name change. Now it is plain from the transcript that the five advocates involved, one for Rutland, one for Staffordshire, one for the mother, one for the father and one for the guardian, all had discussions before appearing before the judge, and Mrs Humphreys for Rutland opened the position, and it is important to record that, having said that the active dispute was one as to contact, she said:

"We are not entirely clear what form of contact or what form of order the official solicitor seeks your Honour to make today."

3. And then over the page she said:

"I think all parties accept that, as a matter of form, direct contact between A and his father, if properly managed, properly arranged, properly supervised and properly assessed, may be of benefit to the child."

4. And then she said:

"I think beyond that we differ in that none of us can put forward a package whereby all of those preconditions can properly be met, given that this is going to be a private law order and the responsibility of the mother to operate. So I think that is properly where we got to in terms of discussions and I am sure somebody will correct me if I am wrong."

Nobody did, and the judge then proceeded to hear submissions from the advocates. He had the foundation of a report from the guardian and more than one report from a clinical psychologist who had made an assessment of the father and the relationship between the parties.

5. For the purposes of this brief judgment I do not think it necessary to go into the history beyond saying that A is the younger of two children born to these parents, both of whom are, in differing respects, handicapped and vulnerable. But it is important to record that the elder child, K, lives with the paternal grandmother; and geographically we survey mother in Staffordshire with A, grandmother in Leicester with K and father in Oakham. Between Oakham and Leicester is a simple journey of 15 miles, well managed by the father. Indeed he not only visits his mother and his daughter but stays with them there too. The distance from the mother's home in Staffordshire to Leicester is more than 50 miles, but contact visits are in place six times a year, although that has not always been an achieved pattern. But the mother does come with A to visit grandmother and K on up to six occasions a year.
6. The other point to make is that the hyphenated double barrelled surname is in place for K, and accordingly a natural part of the father's case below must have been that to accede to his application was to put the two siblings on to the same plane.
7. It is perfectly plain from the transcript that the practical difficulties which the advocates addressed were what are described as "logistics", ie getting the father from Oakham to Staffordshire; secondly, setting up some sort of contact centre or place of meeting which would avoid any direct meeting between the parents; and, thirdly, putting in place proper supervision, supervision management and assessment as outlined by Mrs Humphreys.
8. We can see from Mr Roche's submissions, appearing for the father below, that the lack of clarity mentioned by Ms Humphreys on the first page of the transcript is in part remedied when, at page 21 of the transcript, we see Mr Roche specifically outlining the possibility of father having contact to A on those rare occasions when he visits his sister and grandmother in Leicester, and supervision then provided by grandmother, not necessarily alone but as one of two supervisors working in tandem. That seems to me obviously the most attractive case that could have been advanced on the father's behalf and it remains the most attractive case that can be advanced in this court by Ms Connolly QC, who advocates the appeal. Unfortunately that scenario is not specifically considered by the guardian in her written report and we can see from the submissions of Ms Cross for the guardian in the transcript that, when she was talking about logistical difficulties, they were on the premise that the journey would be from Oakham to Staffordshire. She emphasised the need for a strong supervisor but does not deal with the options advanced by Mr Roche in his closing submissions of a duality of supervision by grandmother and a professional.
9. It is very unfortunate that there was a near six-month delay between the making of the order and the delivery of judgment. The delivery of judgment is fundamentally important not only to inform the litigant as to why he has lost on all fronts, but also to enable those who act for him to file an appellant's notice seeking permission to appeal. That latter consideration was recognised by the judge and time was extended until 21 days after hand down of reserved judgment and so Mr Roche's appellant's notice was filed within time. The judge has explained in a friendly note to Mr Roche that this extraordinary delay was in part caused by the fact that the necessary orders had been made, and so the parties were waiting not to know the outcome but only to know the reasons for the outcome. I do understand that point and I do understand the pressure circuit judges are under, as the judge put it, "the pile of heavy workload". So I do not fail to have regard to the difficulties that judges face in the county court.
10. But there is no doubt at all in my mind that the judgment would have been very different had it been delivered on the 25 or 26 November. The judgment as handed down is brief, and, in explaining his reasons for refusing the father's three applications, the judge adopts the device of simply saying, "well, see what the guardian said in her written report and I adopt that". What he does not deal with are the nuances in the case as presented in the oral submissions on the day. Possibly he had not had the opportunity of noting them fully at the time, possibly they had evaporated from his mind due to the responsibilities and pressures of the cases that he must inevitably have had to grapple with in the intervening months.
11. So I fully accept Mr Vater's submission that this court should be slow to intervene. I fully accept that the judge might have delivered a more extensive judgment in November which would have explained why he concluded that the very limited form of direct contact order which was sought was not, in his view, capable of adoption: balancing the principle that young children should be guaranteed direct contact with a parent unless such direct contact is plainly incompatible with welfare. He could have explained why he thought that even so limited a regime would have imposed on the mother stresses that she could not bear. He could have explained why he did not regard the grandmother or a duality of supervisors would overcome the practical difficulties. Certainly the logistical difficulties would manifestly have receded to the point of non-existence.
12. So I am simply left at the end of the day with a profound concern that, for whatever reason, lack of clarity in the way the case was put, or the passage of time between order and judgment, there is simply no sufficient explanation of why the most practical, least difficult option was not evaluated by the judge and specifically rejected.
13. So I reach the conclusion that this appeal must be allowed and that the wisest course is to remit for hearing in the Leicester County Court by another judge. That hearing should be prioritised. It should be open to the parties to file updating statements and, if necessary, updating reports, and I would particularly emphasise the need for the judge at the remitted hearing to focus on why it would not be practically possible for the father to see A on those occasions when A is brought to see his sister and grandmother. I think that the applications for parental responsibility and change of name must be re-evaluated to reflect whatever decision the judge takes on the direct contact application.
14. There is a question as to whether the order should be set aside only in respect of the judge's rulings on the father's three applications or whether it should be set aside in totality. But we will leave that question for discussion at the Bar, and if that does not result in a consensus then we will give a further ruling at 2.10pm.

Order: Application granted