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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> B (A Child), Re [2002] EWCA Civ 1859 (13 November 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1859.html Cite as: [2002] EWCA Civ 1859

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
NEWCASTLE-UPON-TYNE COUNTY COURT
(HIS HONOUR JUDGE MOIR

		Royal Courts of Justice Strand London, WC2 Wednesday, 13 November 2002

Wednesday, 13 November 2002

1. LORD JUSTICE THORPE: This is an application by Mr P M for permission to appeal an order made by Judge Moir in the Newcastle-upon-Tyne County Court on 17 July 2002. There is a long history of proceedings in relation to Mr M's contact with his two children, P and R. R is 10 years and some 8 months of age, having been born on 16 February1992. Sadly there has been no contact between father and daughter since January 1998, and there can be no doubt that a major part of the responsibility for that lies with Mr M himself.
2. There have been numerous hearings, most of them conducted in front of His Honour Judge Whitburn QC, who has criticised Mr M trenchantly for his attitude. The other consistent contribution throughout these hearings has come from Dr Halse, who is a community paediatrician. He has had a long involvement, and Mr M has on a number of occasions felt that Dr Halse was biased against him, that Dr Halse had some prior involvement with the respondent's family and that Dr Halse was effectively the stumbling block to any progress in developing a relationship with his daughter.
3. The case came before Judge Whitburn in August 2001. He set up a programme of indirect contact to be managed by Dr Halse with review in June 2002. In that intervening period there could be no doubt that Mr M followed carefully the recommendations and the management of Dr Halse sending such presents and cards as Dr Halse conceived to be appropriate and receiving some limited acknowledgment from R. When the case returned to court in the summer of 2002 Dr Halse's recommendation was as follows:

"Indirect contact between father and daughter should continue as presently set through mutually acceptable family intermediary. Additionally, R should meet her father in a therapeutic context facilitated by myself on three occasions per year. In my view the potential of such meetings could only be realised outside court proceedings."

4. His suggested programme was described by the judge as a major piece of work with nine meetings per year over two years. In his oral evidence he explained that he saw his role as being essentially therapeutic and for the benefit of R, rather than to develop an ongoing pattern of a direct contact. He felt that the bitter feelings expressed by R towards her father at Easter 2002 should simply not go unaddressed.
5. The judge rejected Dr Halse's recommendation and his offer to provide therapeutic contribution. She explained her reasons fully and clearly. Accordingly, this application for permission is, on its face, destined to fail, for after all, decisions in these finely balanced cases have to be taken by judges and not by experts. It is hard to see that the judge's discretionary decision that the programme offered by Dr Halse was too stressful and too unpromising to receive her support. It may be almost impossible to challenge.
6. Against that it must be said that this development is, from Mr M's point of view, tragic. Continuity of judicial management is extremely important in these cases. He says plausibly that throughout Judge Whitburn had always followed the recommendations of Dr Halse. Accordingly he says that had the case been listed before judge Whitburn in July 2002 there would have been a completely different outcome. Now I note that the order of Judge Whitburn of 21 August 2001 did not contain any reservation of the review to himself. And there may be very good reasons why the case was listed in July 2002 in front of Judge Moir.
7. However there is an increasing recognition in the family justice system that these intractable contact disputes are better dealt with therapeutically than forensically. It is also recognised that there is a terrible dearth of therapeutic services. So this is a highly unusual situation in which a committed professional, a community paediatrician, was prepared to offer an input to this family problem over an extended period. Arguably the judge's rejection of what was intended as pure therapy for the child was not a decision that could be securely based or rested on the exercise of the judicial discretion. If a community paediatrician proposes a therapeutic program, and if there is no contrary expert evidence questioning the validity of that therapeutic programme, is it for a judge, who lacks any expertise in that particular field, to determine that therapy should not proceed? The rejection of Dr Halse's therapeutic package was accompanied by an order under section 91.14 restricting Mr M from future application for a period of two years. Was that a justifiable order? Certainly there was nothing in Mr M's recent litigation conduct to justify such restriction; it could only be justified upon the basis that it was demanded to safeguard and secure R. Whether that was sufficiently spelt out in evidence may be open to question.
8. Thus I reach the conclusion, which I must record with considerable hesitation, that this application for permission must be adjourned for an oral hearing on notice with appeal to follow if permission granted. I will put a time estimate of one and a half hours on the next listing. It should be listed in front of me and one or two other members of the court, depending on availability. I express the hope that the order that I make today and the judgment explaining the order will be sufficient to persuade the Legal Services Commission to ensure that Mr M is represented on the next occasion as he was before Judge Moir on 17 July.
(Application adjourned; no order for costs).