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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 >> O v O [2005] EWCA Civ 658 (12 May 2005) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2005/658.html Cite as: [2005] EWCA Civ 658

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)

		Royal Courts of Justice Strand London, WC2
		12th May 2005

Thursday, 12th May 2005

1. LORD JUSTICE WARD: There are five applications to appeal listed before me this morning. The first in time is the application to appeal against HHJ Hornby's order of 18th August 2004 ordering the applicant to leave his matrimonial home and not return to it, granting injunctions against the use of violence and molestation in the usual terms.
2. The applicant complains that the judge did not really take account of the voluminous evidence he had submitted to the court, but there is nothing before me to indicate that the judge failed to have regard to the material. The applicant's great problem is that the judge simply did not believe him and, in the result, the orders were almost inevitable. The judge did not believe the applicant, among reasons, that he was denying medical evidence and some evidence from the police and was, in effect, submitting that the doctor and the police were in a conspiracy to cause him harm. The judge was totally entitled to come to that conclusion and I can see no real prospect of success in attacking those findings. They included findings of assault. The applicant says that that happened on a public holiday in May and that there is no corroboration of it, but those were essentially for the judge, and he had a wealth of corroborative evidence from doctors and the police reports to justify the findings that the applicant had been guilty of violence. He correctly applied section 33 of the Act and weighed the material and circumstances and he was satisfied that the applicant had somewhere to go by way of alternative accommodation in his father's home, and that the wife had nowhere else to stay. They were equally short of money and the needs of the children were that they live with their mother. I can see no real prospect of successfully attacking that judgment and I would dismiss that appeal.
3. The second application is more complicated. It is against HHJ Hornby's order of 19th October 2004. The order reads:

"The application for permission to appeal the order of District Judge Millard made on 16th July 2004 shall be refused."

4. The applicant does not appear to have a copy of the District Judge's order. He is entitled to have a copy of the order. Indeed, it should have been provided to him by the court. If he has not had it, he should go back to the court with this judgment and seek a copy of the order.
5. There is, I should explain for his benefit, a difference between the order that is drawn and a transcript of the evidence or a transcript of the actual judgment leading to the making of the order. All I am permitting is a copy of the order. If he wants other transcripts, I am afraid he must pay for them.
6. There are two difficulties facing this appeal. The first is that the applicant seeks permission to appeal against a refusal of permission to appeal. I am afraid that simply is not possible. The effect of section 54(4) of the Access To Justice Act 1999 does not permit an appeal against a refusal of an application for permission to appeal. So it seems to me I have no jurisdiction. Even if I did, this would be a second appeal and the applicant would have to show some important point of practice or principle or some other compelling reason. There is none. What seems to have happened is that there was an altercation between husband and wife. I am quite prepared to accept that the wife struck the husband with the television remote control and he retaliated and slapped her face in return. Judge Hornby is correct in his legal analysis that, no action of self-defence being raised, this was an assault on the wife. The District Judge appears to have made no order against the applicant and, although I regard this as an unfortunate incident, there is nothing I can do to assist the applicant in this regard. If HHJ Hornby thought at one stage in the earlier proceedings that the applicant had inflicted the harm on himself, but the applicant may have evidence from the hospital showing the degree of harm which would make that finding surprising. Nontheless, there is no error of principle and the judge was entitled to find the facts as he did. There is no point of any importance and the threshold of the second appeal is certainly not overcome. This was a technical assault for which no order was made and, in any event, I cannot see anything wrong with that.
7. The third application is to appeal the order made by HHJ Roberts on 17th November when the Judge dismissed the applicant's application for a residence order in respect of the two children, and made an order that they should reside with the mother. I confess I do not fully understand all of the machinations of getting that particular application to the court and the circumstances why HHJ Hornby thought it necessary to make an order on 12th November, endorsed with a penal notice for the applicant to attend court on 17th November. He did not attend and, in his absence, HHJ Roberts had little option but to make the residence order in the mother's favour, finding, as he did, that the CAFCASS report entirely supported the mother and was adverse to the father. That may not be surprising, given that the younger child was still a baby, needing the mother's care.
8. On the merits, this is a difficult application to mount. I see no error in the way HHJ Roberts dealt with it. If and insofar as the father's true complaint is that the order was made in his absence and should therefore be set aside, his proper remedy is to apply back to the County Court to set the order aside, under what I think is CPR39.3, explaining why he did not attend.
9. Insofar as he appeals, or seeks permission to appeal, to the Court of Appeal, that is the wrong route. In any event, on the judgment of the judge, I can see no error that was made by him and I am afraid this court cannot interfere with that order. If the father wants to do that, he must go back to the County Court.
10. I come, then, to application number four to appeal against HHJ Bradbury's order of 23rd March that there be no order on the father's application for a prohibited steps order. What the father was endeavouring to do was restrain his wife from taking the children to Nigeria for a holiday between 18th March and 5th April. The Judge refused the order because when the matter came before him they were already in Nigeria. He was obviously right in that view. So far as this court is concerned, there is no point in appealing that order because the children have been and have come back and it would be a wholly academic exercise and this court does not entertain academic appeals. So that application must be dismissed.
11. That leaves, finally, HHJ Hornby's order of 29th March, restraining the applicant from returning to the matrimonial home and repeating the injunctions against violence and molestation. A power of arrest was attached to that. There was a subsidiary order giving directions for the filing of further evidence and that was necessary because that order was to last only until 15th April. In other words, as at today's date, that order has already expired and, once again, this is a purely academic application. I have papers before me suggesting that, for some reason or other, a district judge dealt with those matters on 15th April, not a circuit judge, but I cannot entertain any appeal from the District Judge's order, nor is there any point in attacking HHJ Hornby's order of 29th March. I do not know why it was listed before a district judge and not the Circuit Judge. I do not understand what appeal is outstanding but there is no point in my investigating those matters because, as I have said, it would be academic to allow an application to appeal against this order. The matter must be dealt with in the County Court.
12. All in all, therefore, and for the reasons I have given, which do not deal with each and every of the many, many points put in writing before me which I have considered on the papers, none of which, I am afraid, are of substance, I can see no interference with the applicant's human rights and actions taken have all, it seems to me, been both necessary and proportionate, having due regard to the conflicting human rights of the other parties in the case. So I am afraid all the applications are dismissed.
13. MR ORITSEJARO: Can I just ask you a question, please?
14. LORD JUSTICE WARD: Yes, of course.
15. MR ORITSEJARO: Can I obtain a copy of the transcript at public expense?
16. LORD JUSTICE WARD: Of this judgment?
17. MR ORITSEJARO: Copies of judgment, please.
18. LORD JUSTICE WARD: I am going to give you that permission, yes. So you will get a copy of this.
19. MR ORITSEJARO: Do I need to fill in anything?
20. LORD JUSTICE WARD: I do not think so. You will be sent a copy of my judgment.
21. Try and calm it down. You are flooding the County Court with applications and they are just not doing you any good. Your marriage, you must accept, is over now. You and your wife have got to part. The sensible thing to do is to concentrate on the children and make sure you see enough of your children.
22. MR ORITSEJARO: I can't see them any more. I can't see them.
23. LORD JUSTICE WARD: Why not?
24. MR ORITSEJARO: Because the respondent has been making trouble with me. She has injunctions.
25. LORD JUSTICE WARD: Then you should try and find someone else to help you and seek some help from the CAFCASS officer to make things easier, but this war has got to stop. It is not good for your. Your health is not good. It is not good for your children. You must now try and accept this change in your life. Really, you are going to make yourself very unhappy if you carry on, every week making more and more applications. The court will just stop you coming and that will not be good for anybody.
26. MR ORITSEJARO: I think I do have the right.
27. LORD JUSTICE WARD: I know.
28. MR ORITSEJARO: If I can't, there is something wrong.
29. LORD JUSTICE WARD: You must calm it down, please.
30. MR ORITSEJARO: Thanks.