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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 [2006] EWCA Civ 1528 (05 September 2006) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/1528.html Cite as: [2006] EWCA Civ 1528

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHESTERFIELD COUNTY COURT
(MR RECORDER MAXWELL QC)
(LOWER COURT NO CD03 P03039)

		Royal Courts of Justice Strand London, WC2
		5th September 2006

1. LORD JUSTICE MUMMERY: I will ask Wilson LJ to give the first judgment.
2. LORD JUSTICE WILSON: A father applies for permission to appeal against an order for contact between him and his daughter, L, who was born on 23 February 1995 and is therefore 11 years old, made in the Chesterfield County Court by Mr Recorder Maxwell QC on 17 March 2006.
3. The effect of the recorders's order was, to a limited extent, to vary downwards the amount of contact between the father and L, which had been provided for in an earlier, then subsisting, order of the court. The father is 18 days out of time in having filed his Appellant's Notice; but in the notice he has adequately explained the degree of confusion which led to that lateness and, in my view, we should not trouble about that delay and should grant him any necessary extension of time for appealing.
4. The application for permission by the father was first listed before Wall LJ; and having read the nine grounds for appeal in the Appellant's Notice and heard the father thereon, he adjourned the application for permission, to be heard by two judges of this court on notice to the mother. He expressed firm views about one of the grounds of appeal, namely that it was misconceived; expressed considerable doubts about seven other of the grounds of appeal; but expressed provisional interest in the validity, or possible validity, of the remaining ground of appeal. He invited the parties to file position statements for the resumed hearing of the application on that one point. Thus it is that today we have the benefit of an attendance not only by the father and the mother, who appear in person just as they did before the recorder, but also of position statements directed to that one point.
5. That point is in fact point number 6 in the nine listed grounds for appeal. The point can be thus summarised. Prior to the recorder's order, the father had been having overnight contact with L for just more than 104 nights per annum. The father, who is subject to the earlier rather than the later child support legislation, was thereby entitled to a discount off the child support otherwise payable to the mother for L. The rule is, under those old provisions to which the father is subject, that, if a child spends at least 104 nights per annum with the non -residential parent, then two sevenths of the non -residential parent's net income is ignored for the purposes of computing child support. Under the order, prior to the recorder's variation, L was spending just more than 104 nights per annum with the father; but, under the recorder's variation, the number of nights spent by L with the father per annum is reduced to rather less than 104 nights, namely about 93 nights. Thus it is that the father, as is agreed, has, by virtue of the recorder's order, lost the exemption which keeps his obligation to pay child support lower than it would otherwise have been.
6. This was a point to which reference was made by the father during the hearing before the recorder. Indeed each parent has accused the other, in the long history of conflict over L, of being motivated to make their submissions by reference to whether or not more or less child support would be paid. Apart from an oral reference by the recorder, which, according to the mother but not according to the father, was made by the recorder at the hearing to this point, he made no reference to the fact that his variation would have the financial impact which it has had. Ground 6 of the grounds for appeal is that the recorder fell into error in failing to have regard to the impact upon child support of his order for contact. Speaking for myself, having heard the father's argument today on that point and having also heard the mother's argument in answer (including full argument on any substantive appeal thereon), I consider that it is an arguable point which we should take time to consider. I would therefore grant permission to the father to appeal on ground 6 in the grounds for appeal.
7. It is convenient, however, to consider at this stage the other grounds for appeal. Ground 3, which it is convenient to consider second, is an allegation that the recorder was not, as a matter of jurisdiction, endowed with the capacity to hear a contact application. The argument is that the ticket has not been conferred upon him by the President of the Family Division which would be necessary in order to enable him to hear, in his capacity as a recorder, private family law proceedings. In preparation for the hearing before him, Wall LJ made his own enquiries of the President's office and ascertained that, contrary to the complaint made by the father, the recorder had indeed been given a ticket to hear this type of dispute and thus had previously undergone the necessary judicial training. It is not surprising that Wall J was given so to understand because when, at the end of his judgment delivered in March 2006, the father had raised with the recorder whether he had the requisite ticket for the dispatch of this sort of litigation, the recorder had asserted that he did. I regard Wall LJ, as having, in effect, already refused permission on this ground; but, were there to be any doubt about it, I, for my part, hereby propose that we should formally refuse permission to proceed upon that misconceived ground.
8. It is convenient next to go to the second ground for appeal. This relates to the fact that, at a hearing for directions on 14 September 2005, ie five months prior to the hearing before the recorder, a deputy district judge had given directions (I have to add entirely anodyne directions, such as for the preparation of a CAFCASS report) and again, according to the father, he was not qualified to give such directions in that he lacked the requisite ticket. It has not been demonstrated to this court that he lacked the requisite ticket, but it may be that he did lack it. More importantly, it has not been demonstrated to this court that a deputy district judge who lacks a requisite ticket is not entitled even to give directions in a family dispute, as opposed, of course, to conduct the substantive hearing. However the easiest way of dealing with this arid point is to point out that, if this is to be the subject of an appeal from any order, it would be an appeal from an order dated 14 September 2005; and that the Notice of Appeal does not purport to appeal against this order. Were the notice now to be amended, the appeal would be grossly out of time and would lack all merit in the light of the fact that it is a complaint about anodyne directions, which were given and acted upon and were necessary in order to assemble the case for trial. Accordingly I would refuse permission to appeal on that ground.
9. It is convenient, fourthly, to go to the first pleaded ground of appeal. The position was that a host of orders have been made for contact in this case in the Chesterfield County Court. In December 2004 the father issued an application that the court should apply a penal notice to the then subsisting order for contact; and in May 2005 the mother issued a cross -application that the contact provisions should be reviewed and a reduction in the level of contact made.
10. This ground of appeal is a complaint that, in issuing that cross -application, the mother used the wrong form. She used Form C2 in the appendix to the Family Proceedings Rules 1991 rather than Form C1. She used a form referable to an application in existing family proceedings rather than a form apt to new proceedings. In my view she used the right form. There were existing family proceedings. The contact order that had been made in 2004 was an order made "until further order"; so the proceedings existed. Equally the father's application for a penal notice was then undisposed of; so that application existed too. Even if, contrary to my views, the form used was the wrong one, this is an entirely arid and technical complaint. I am not sure that it was raised even before the recorder and, on any view, it does not merit further consideration. I would refuse permission there too.
11. It is convenient next and fifthly to go to the fourth pleaded ground for appeal. This is a complaint that the recorder showed clear bias against the father and made his findings of fact dishonestly. Were these most serious allegations to be mounted in this court with any chance of success, they would have to be demonstrated by use of a transcript not of the judgment but of the proceedings. By reference to what we have been provided, I can see no possible bias against the father, or any dishonesty, on the part of the recorder whatsoever.
12. It may be helpful at this stage for me simply to observe that the minor reduction in contact which the recorder favoured was a reduction in the contact which the father had been enjoying with L every alternate weekend from Friday to Monday. L had said to the CAFCASS officer, and we must bear in mind that she is now aged 11, that she was increasingly disinclined to go to contact with the father every alernate weekend because he was so inflexible; because it interfered so much with her growing social arrangements; because he and his cohabitant argued so much between each other; and because she herself did not get on well with the cohabitant. The CAFCASS officer had reported to the recorder that, allowing for the inevitable osmosis of feelings as between a daughter and a mother with whom she was living, she, the CAFCASS officer, detected that, in saying those things, L was genuinely speaking her mind. While declining to make a specific recommendation, the CAFCASS officer counselled the recorder to allow the child to have a voice in the proceedings on the basis that at her age it was very important that she should feel that decisions referable to her were at least, in part, made in the light of what she was herself saying. It was that factor which the recorder accepted and which contributed to his making such relatively minor adjustment in contact over alternate weekends, as provided, that for one half of those alternate weekends contact should start not at 6pm on Friday but at noon on Saturday. Thus, so far as I can see, there is a solid, child -centred foundation for the order for contact; and, subject to the existing, live argument about the relevance of child support, there is no evidence of bias or dishonesty whatever. I would refuse permission for that ground of appeal to be brought into this court.
13. It is convenient sixthly to consider the fifth pleaded ground of appeal. This is a complaint that, in making his decision, the recorder based it upon the best interests not of L, but of the mother. In arguing that ground today the father has drawn to our attention the fact that, while the recorder could have referred in this regard to the welfare check -list set out in section 1(3) of the Children Act 1989, he did not do so. According to the father this serves to demonstrate that he fell into error in not making the child's interests paramount, but rather, so it is said, in making the mother's interests paramount.
14. I believe that, in my despatch of the previous ground of appeal, I have explained the clear child -centred foundation for the recorder's main decision. There are decisions of this court to the effect that it is not compulsory, though may sometimes be advisable, for recorders and judges expressly to refer to the check -list of factors under section 1(3) of the Act of 1989. I see no merit in this ground of appeal and would refuse permission for it to proceed.
15. It is convenient seventhly to go the ninth ground of appeal, namely a complaint that the recorder failed to accede to an application by the father that such weekend contact as was to begin on Fridays should begin not at 6pm after L has gone back to the mother's home from school but straight from school itself. It is frequently suggested on behalf of fathers, that it avoids acrimony for the collection of a child for contact to take place at a neutral venue such as at the school gates following the end of the school day; and it is a perfectly respectable argument. There is, however, a perfectly respectable counter -argument, often articulated by mothers, namely that it is a better start to weekend contact for the child to be allowed to go home to change, to organise what homework she needs to do over the weekend, to pack a bag for the weekend and to be collected from the home for the beginning of contact.
16. That latter arrangement was indeed the subsisting arrangement favoured by the recorder who had determined the issues in relation to contact in 2004. The father wanted it changed. It was not changed. There is no such error on the recorder's part as, in my view, would entitle this court to interfere with that sort of decision. I would refuse permission in respect of that ground.
17. Eighthly, it is convenient to go indeed to the eighth pleaded ground of appeal, namely that the recorder's order undermined the value in L's life of the father and condoned breaches on the mother's part of the contact provisions. I am surprised at that last complaint. I am surprised because although the father had, at the outset of the hearing, abandoned his application that a penal notice should be applied to whatever new order for contact was made, he did invite the recorder, and the recorder did agree, to go through the history of the father's complaints that between about July 2004 and July 2005 the mother had, in various respects, broken the then subsisting order. Meticulously the recorder analysed some six or seven incidents. He criticised the mother in respect of, so I recall, two of them; and he dismissed the father's complaints in respect of, so I recall, four or five of them.
18. I see no condonation either in the order or in the judgment of any breach of the contact order on the part of the mother; and although, human nature being what it is, the father objects to the substantial criticism of his inflexibility and to other criticisms made of him by the recorder, in my view such is not a proper ground for appeal to this court. I would refuse permission in that regard also.
19. I come ninthly and finally to the only remaining ground of appeal, ground number seven, in the grounds as drawn by the father. This is a complaint (I am tempted to call it a makeweight complaint) that in his determinations the recorder infringed the rights of L and of himself (I suspect that the father is primarily considering the latter) under Article 8 of the European Convention 1950 to respect for their family life and the father's rights under Article 6 to a fair trial. When asked by my Lord this morning to expand upon the generality of that complaint, the father alighted upon one particular feature of the judge's determination. The order in 2004 had directed the father that, if and insofar as L was due to go to a dancing class during any period of contact with him, he should take her to that class. After hearing argument the recorder in March 2006 deleted the word "dancing", with the result that the present order is to the effect that, if any class organised for L is to take place during any period of contact with the father, the father should take her to that class.
20. I have to say that that is an entirely trivial complaint. I am not persuaded that it was arguably out of order for the recorder to make that variation; and, in my view, the complaint only shows the lack of substance in what I have described as "makeweight" references to the Convention of 1950.
21. For those reasons I, for myself, would grant permission only on one ground, ground 6, and would refuse permission to appeal on the remaining eight grounds for appeal.
22. LORD JUSTICE MUMMERY: I agree with the judgment of Wilson LJ. The order we make is that we grant permission to appeal on ground 6 and take time to consider our judgment on that point, having heard your arguments. We refuse permission to appeal on all the other grounds, and we have, as Wilson LJ mentioned at the outset of his judgment, extended Mr B's time for making this application out of time.
23. So the position now is that you will be contacted in due course when we are ready to hand down our judgments on your appeal on ground 6, that is the Child Support Agency point. Everything else has come to an end.