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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 (Children), Re [2002] EWCA Civ 701 (1 May 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/701.html Cite as: [2002] EWCA Civ 701

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORTHAMPTON COUNTY COURT
(His Honour Judge Corrie)

		Royal Courts of Justice Strand London WC2 Wednesday, 1st May 2002

Wednesday, 1st May 2002

1. LORD JUSTICE THORPE: The applicant, Mrs B, is 28 years of age. She has two children, K, who is now 11, and C, who is five and a half. K's father has played no material part in her life, but Mrs B commenced a relationship with Mr W, who is 31 years of age, in 1991, prior to K's birth. That relationship ended in 1994 and contact took place between K and Mr W after the separation. In the spring of 1995 Mrs B formed a new relationship with JM. He is the father of C, who was born on 3rd July 1996 and who is therefore five years of age. Contact took place between Mr W, K and C in 1996 and 1997, continuing until August or September 1998 when it terminated following staying contact with Mr W in Devon. There then followed court proceedings, which have been extensive, in the course of which numerous orders have been made for contact which have been disobeyed or ignored by Mrs B. In those circumstances she found herself, almost inevitably, answering an application for her committal to prison which was listed before His Honour Judge Corrie, sitting in the Northampton County Court, on 19th November 2001.
2. Both Mr W, as the applicant, and Mrs B, as the respondent, were represented by counsel. In a succinct judgment Judge Corrie explained the background and referred to a report from the court welfare officer, Mr Fitzgerald, who in December 2000 had recommended contact on the firm foundation that there had been a relationship between the children and Mr W and that Mr W had been regarded, particularly by K, as the only father figure she had ever had. The judge recorded Mrs B's submissions that, given K's age, more emphasis should be placed upon her wishes. The judge was shown a letter on which reliance was placed. He was told that she had made arrangements for relatives to care for the children, anticipating the obvious possibility that an immediate custodial sentence would be imposed. The judge had proper regard to the relevant authority, namely the case of Hale v Tanner, in which this court had set out the considerations to which courts of trial should have regard.
3. The judge assessed the case before him in these terms. He said:

"This is about as plain and obvious an example of utter and continued defiance of orders made after careful consideration, as it would be possible to find."

4. In those circumstances he concluded that a custodial sentence was justified and that the period of custody should be one of 28 days. The judge then went on to deal with the consequences in an extremely sensible way.
5. Obviously this was a case in which suspension was not just a possibility, but a strong probability. Mr W was only interested in having contact with the girls, and his counsel applied for a period of contact in the local town as a condition of suspension. The judge adopted a more sophisticated mechanism of his own. He said this:

"What I propose to do, as may have been foreshadowed by some observations which were made earlier, is to direct there be a further period of contact to be at the CAFCASS office, to be supervised by Mr. Fitzgerald, the family and court reporter, for a period of up to two hours, and I shall direct that the mother brings the children to the CAFCASS office ... for that purpose. That is to take place on a week day ... in the next fortnight - that is to say, between now and 3rd December. Thereafter, there is to be a short addendum report by Mr Fitzgerald, who is to deal with all relevant matters, including K's wishes and the impact and relevance of the further factors relied upon by the mother.

The matter will then be relisted on a half-day appointment in the week beginning 10th December, and the welfare officer is to attend. Both parties, if they wish, are to file and serve further evidence by 26th November, and `service' means service on Mr. Fitzgerald so that he has that material available for his supervision of the contact and to enable him to conclude his further report. As I have said, he must attend on the further hearing, at which the future progress of contact will be decided, so that the suspension of the prison term is on the condition that the mother produces the children for the purpose of that supervised contact at the CAFCASS office...."

6. Following judgment, Miss Fittan-Brown, counsel for the mother, rose to inform the judge that her client would not bring the children to meet Mr W. She then said:

"She would ask your Honour to invoke that sentence today."

7. The judge's response to that defiant application was, in my view, very sensible. He said:

"It is unfortunate that she should say that, and I am not going to invoke the sentence now; I am going to wait and see what she does, so as to give her a further period of reflection. I can see no reason why there should not be a repeat of the exercise conducted (because there had been then, as now, a significant delay in implementing the contact due to your client's refusal) in September last year when a further report was ordered, and that is what I am directing. If she chooses not to accept, then that is a matter for her and all will become plain when she does or does not. She is anxious, as I understand it, for K's wishes to be looked at again, and I have accepted that that is a valid point in a girl of her age, and it would enable K to say what she thinks and for the CAFCASS reporter to assess whether what she says is what she really thinks. I am surprised and disappointed at your client's approach, but I am not going to implement the sentence now, and it was unwise of her to make that suggestion."

8. What effectively the judge was doing was making the mother mistress of the situation. He was giving her an opportunity to demonstrate responsibility, moderation and cooperation in the process by which disputes of this character have to be resolved in order to promote the welfare of children.
9. Unfortunately the mother remained defiant, and the case was accordingly listed in the week commencing 10th December - in fact on the 12th - before another judge of the court, Judge Crawford. By that time the mother had changed her counsel. Mrs Ancliffe appeared on her behalf, and she persuaded the judge to make an order to this effect:

"1. There be a stay of the Applicant's application to commit the Respondent, [Mrs B], dated 18 October 2001, on the following terms:-

(i) the Respondent do seek the leave of the Court of Appeal to appeal out of time the contact order of 19 November 2001 and, if so advised, the orders of 28 February 2000 and 22 June 2001.

(ii) such application is to be made by Friday 14 December 2001.

2. If the application for leave is refused by the Court of Appeal the matter is to be restored ... to be heard on Friday 14 December 2001 ... reserved to His Honour Judge Crawford QC."

10. That order was unusual in that it assumed that the application to this court to appeal out of time the order of 19th November 2001 and, if so advised, earlier orders would be determined within a period of 48 hours. The judge was sitting on 12th December, and he was providing for the case to be relisted in front of him 48 hours later if the mother failed in the Court of Appeal.
11. In the event, this court received an application or notice on 13th December, the following day. All that that application sought was to challenge the order of 19th November made by Judge Corrie. No challenge was issued against the earlier orders of 28th February 2000 and 22nd June 2001. Since the application to this court challenged only the order of 19th November, and since that order was a suspended committal order, it was not necessary for the applicant to obtain permission. However, it was necessary for the applicant to obtain an extension of time since the order of 19th November, if to be challenged as a matter of right, had to be challenged within 14 days.
12. In the haste of preparation this reality was seemingly overlooked, and the application of 13th December under section 6(b) sought the court's permission to appeal. It sought subsequently, in section 10, an extension of time. Belatedly, in February, a further free-standing application to admit fresh evidence was also filed. I say nothing further as to that because that free-standing application is of no significance and, in my opinion, was misconceived.
13. The application of 13th December was considered by me on paper and an order made for an oral hearing without notice. That was fixed for hearing on 10th April, but was vacated since Mr Setright was not available on that day. The application was adjourned and is now relisted on this first day of May. Mr Setright has argued the case with his customary skill and persistence, but he faces an extraordinarily difficult task. He says that the judge on 19th November fell into a fundamental error since he failed to consider, separately and independently, the position of K, who in August 1998, when contact ceased, would have been seven years of age, whereas C at that date would only have been two years of age. The short answer to that point is that the judge was not asked to consider the two children separately. It is manifest from his judgment that the case proceeded throughout as if there were no material distinction between the two. The judge obviously had in mind the age difference and obviously must have perceived that direct contact between the applicant and C had terminated when she was very young.
14. As I have emphasised during the course of argument, the resolution of these very difficult cases rests with the experienced judges in the court of trial. His Honour Judge Corrie is a designated judge with particular experience in this jurisdiction. Necessarily, the discretion given to judges on applications of this character is particularly broad. His Honour Judge Corrie might have elected any one of a wide range of determinations. Manifestly, the determination for which he elected was fully expressive of his wide experience and his deep understanding of family conflict. His decision was essentially one of interlocutory case management. He recognised that the mother had an entitlement to a re-evaluation in the light of changed circumstances and in the light of developments within the family, particularly the development of the girls themselves over the intervening three years. He wanted those considerations to be properly prepared for trial. He wanted the experienced court welfare officer/court reporter to participate fully in the process. It was to that end that he made the arrangement for one extremely limited period of contact, which was essentially for observation and assessment. That, in my judgment, placed a considerable responsibility on the respondent mother to co-operate in the litigation process. The judge fully recognised that he was putting her to the test, and obviously he had the unwavering hope that she would not fail in that test.
15. Mr Setright has said that by the time 12th December had arrived, she had burned her boats and that His Honour Judge Crawford had no alternative but to imprison her. I do not accept that. It is never too late for a parent in these circumstances to repent. Had the mother said to Judge Crawford on the 12th December, "I now regret my continuing defiance of His Honour Judge Corrie's order. I am prepared to cooperate in bringing about the one period of observed and assessed contact", I cannot think for a moment that the judge would have contemplated the implementation of the order. I would like to make it plain that even now it is not too late for this mother to demonstrate moderation and good sense.
16. The right to invoke the family justice system is there for all who have party status within family litigation, and manifestly all parties have their Article 6 rights to fair trial. Fair trial involves proper investigation and profound determination. The mother at the moment seems bent on frustrating that process of proper investigation and fair determination. That simply cannot be condoned.
17. My only concluding observation is that it is highly unfortunate that the application to this court, which Judge Crawford perhaps optimistically anticipated would be determined within 48 hours, has by one route and another now taken nearly five months to determine; five months that go to the disadvantage of Mr W; and five months which almost certainly have gone to the disadvantage of these two girls who, I suspect, must be either damaged or exposed to damage by these continuing proceedings. If the mother wishes to consider the children and their welfare as her paramount consideration, then she should surely survey the effect on them of the extension of these proceedings by her choices and actions.
18. This is, in my opinion, a hopeless application since, were it granted, it would have no effect other than to admit to this court an appeal with no realistic prospects of success. The order made by His Honour Judge Corrie on 19th November is not only an order which was manifestly within his broad discretionary band, but an order that, as I have already said, displays his great experience and understanding of these very difficult family disputes. The application for an extension of time is therefore dismissed.
Order: Application dismissed. Public funding assessment of the Applicant's costs.