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Cite as: [2013] EWCA Civ 123

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		Neutral Citation Number: [2013] EWCA Civ 123
		Case No: B4/2012/0062

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY
FAMILY DIVISION
(MRS JUSTICE PARKER)

Royal Courts of Justice
Strand, London, WC2A 2LL

16th January 2013

B e f o r e :

LORD JUSTICE MCFARLANE
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IN THE MATTER OF L (A CHILD)

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The Applicant Maternal Grandparents 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 McFarlane:

This is an application for permission to appeal made by Mrs S, who is the grandmother of a young child whose first name begins with M, who was born on 14 January 2004 and now therefore is, just this week, nine years of age.

There have been proceedings before the Family Court in relation to M's care and wellbeing for a very substantial time. In recent times Parker J has been the judge in the Family Division of the High Court who has been presiding over the issues in relation to M. In short terms, M has lived from really her earliest days in the care of her maternal grandparents, and there has been difficulty in M maintaining at times any contact with her mother. It has been said by judges -- Black J, as she then was, and now Parker J -- that at the root of the difficulties in this case is the relationship between the grandmother and M's mother. There is a dispute about that and whether or not there is any harm to M as a result of that relationship or as a result of the care that M is given by her grandparents.

The notice of appeal, which is dated 9 January 2012, relates to a particular hearing, namely that on 18 October 2011 when the judge sanctioned unsupervised contact between M and her mother to take place once every three weeks for an hour-and-a-half at a local pizza restaurant, and the notice of appeal seeks to challenge that contact arrangement and also the appointment of NYAS as the child's guardian in the proceedings.

The matter came before me for consideration as an application for permission to appeal on 15 May 2012. As I understand it, the reason that it took some four months before the matter came before a judge was in part because the case involving M is organic in the sense that it has developed week by week, month by month; and fairly regularly, in the period both before October 2011 and since, there have been hearings before Parker J. Mrs S, the grandmother, understandably took the view that she would wait until the next hearing and see what the position was, only to then wait until the following hearing and so on. The case was brought in before me to see what the position was and I was persuaded by Mrs S on 15 May that, because there was yet another hearing booked for 29 June 2012, the case should be put off in terms of permission to appeal until after that. Also I recall Mrs S explained to me that although the notice of appeal related to just one order, her real criticism of the process went to its core, namely the issue of wardship proceedings in relation to M which had been instigated by the judge in an order of 23 February 2011. In reality what Mrs S was saying to me was that she was highly critical of the conduct of the case by the judge, root and branch, at all the hearings from beginning to end. She therefore asked for further time to draw all of the points together that she wished to make and to consider widening the potential appeal.

That was going to be a substantial task for anybody, even if they were legally qualified. Mrs S is a self-represented litigant, both before this court and before Parker J, and the task of drawing matters together as she wishes to do, or wished to do, was substantial and was to be undertaken at the same time as looking after M, and also undertaken at the same time as dealing with the ongoing hearings before Parker J. I therefore make no criticism of Mrs S in observing that she has not been able to furnish the court with the enlarged full-scale appeal that she wished to bring.

Matters however have moved on, and the level of concern that Mrs S now has about the court process has escalated following the decision of Parker J on 14 December 2012 to make an interim care order to the local authority, sanctioning then and there the removal of M from the grandparents' home to foster care.

An application for permission to appeal that decision was issued in this court yesterday, 15 January 2013. Because these are now public law proceedings Mrs S qualifies for legal aid, and solicitors are instructed for her in respect of this proposed appeal.

I have read the unapproved draft of the judgment given on 14 December and I have read a holding set of grounds of appeal that the solicitors have put in. I have also read Mrs S's own plea for an urgent and emergency appeal hearing with respect to the interim care order.

The court has been informed that the solicitors now wish to perfect the grounds of appeal in the light of the unapproved draft judgment and to prepare a skeleton argument. Legal aid is available to instruct both leading and junior counsel, and it is proposed, as I understand it, that the necessary paperwork is prepared over the next few days with a view to the court considering the matter thereafter.

Rather than waste time by going through the ordinary procedure of me looking at the request for permission to appeal on paper and then running the risk, if I am not favourably disposed to it at that stage, of a further oral hearing at a date some week or two after that, I have taken the view that we are to fix an oral hearing in any event; and at the moment I have made directions that that should be at the earliest date after Monday 28 January. We will however contact the solicitors again this morning following Mrs S's plea that the matter should be dealt with sooner than that if possible. For my part, if the solicitors can prepare the paperwork at an earlier stage then I would be prepared to accommodate an oral hearing during the course of next week; that is, the week commencing 21 January. In making that observation I am not at all critical of the solicitors and counsel needing time; this is a case with a very substantial history and it is important that Mrs S's legal advisers can get their collective heads around the detail of the matter before committing themselves to a definitive set of grounds of appeal.

I am confident that they will work promptly, just as they seem to have done in getting the case up and running thus far.

That account sets the scene as it now is but the only issue before me today relates to the notice of appeal dated nearly exactly a year ago January 2012. The contact order in fact was not one that produced more than one effective contact visit to the mother; it has been overtaken by many events since it was made some fifteen months ago, and Mrs S agrees with me that it will profit nobody for there to be an appeal now as to whether the judge was right in October 2011 to make a contact order or order that the child should be represented by NYAS.

If, in due course, those acting for Mrs S take the view that it is necessary to look back at the whole process to go to the core of the case, the wardship and the approach taken by the Family Court at the successive hearings, then of course it is open to them to seek to widen any appeal, apply for permission to bring that, to bring it out of time, and I will consider that application. But the narrow point before me today is now effectively stale and it seems to me that the only order that I can sensibly make is to dismiss the application to appeal the contact order made in October 2011, and I therefore refuse permission to appeal that order.

That in no way, and I hope I have set the ground very clearly in what I have said, indicates a view one way or the other as to the merits of the overall points that Mrs S might wish to make before this court in due course.

Order: Application refused