P (Children) [2002] EWCA Civ 1462

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND AN EXTENSION OF TIME
[2002] EWCA Civ 1462Case No No: Pro formaVenue Royal Courts of Justice, Strand, London WC2, Monday, 23rd September 2002
Between
P (Children)
Before
Lord Justice WardThe applicant father appeared in personMISS BUDALY (Instructed by Messrs Osbornes of London) appeared on behalf of the RespondentDate 23 September 2002

LORD JUSTICE WARD:

This

[1]is an application by Mr Pine for a stay of execution of an order made by His Honour Judge Carston QC on 12th September 2002 and for permission to appeal against that order. The order provided for Mr Pine, the respondent in the proceedings in the court below, to vacate the former matrimonial home by 4 pm on 22nd September. As is almost invariable, the application for that stay was presented to me at 4.30 on Friday afternoon with the order to take effect on Sunday afternoon. I therefore granted a stay over the weekend but directed that the matter be heard on notice to the wife today.[2]Mr Pine appears in person and his wife is represented by counsel. The judge made further orders to regulate the occupation by requiring the husband to deliver keys to the applicant. He was forbidden from taking any steps to make the property inaccessible or removing any of the fixtures etc. He was to make certain payments of outgoings and he was restrained from using or threatening violence towards the applicant or harassing, molesting or pestering her. A power of arrest was attached to that order. Mr Pine's first complaint is that the judge erred in not granting him the adjournment he sought of that hearing.[3]It seems from the papers to which I have been referred that this unhappy couple - who married in February 1996 and have four children ranging in age from nearly 6 years to just a year old - separated on 29th March 2002. The wife made various applications, particularly to regulate where the children should live. There was a non-molestation order made in April. On 29th April it would seem proper application was made for non-molestation and occupation orders. In other words, a long period of notice of this application had been given to the husband. I fully accept that the pre-occupying interest for him was to do with the children. But the solicitors and counsel he had instructed were, I must assume, well able to prepare both for the children aspects of this unhappy litigation as well as the question of molestation and occupation of the matrimonial home. Unfortunately Mr Pine ran out of the necessary funds to continue the services of solicitors and counsel. From the papers it appears that the solicitors ceased to act on about 9th August, more than a month before the date fixed for hearing, a date which had long been known.[4]Mr Pine applied for the adjournment contending that as a litigant in person he was not well able to present his own case, that he needed more time and that he needed the services of solicitors. He contended that he was in difficulty because his solicitors had exercised the lien over the papers and that he had a difficulty in that regard. According to Miss Budaly, an index of the documents was prepared by the wife's solicitors on 30th August. He was invited to comment. On 3rd September he asked for certain documents to be agreed and placed in the bundle, and that was done. That bundle was sent to him and received on the Wednesday before this hearing. The judge dismissed that application, being of the view that he had everything he reasonably needed to be able to deal with the matter. The judge said in the note prepared by the solicitors which the judge had not had the chance to approve:
"As to his suggestion that he has not had enough time to prepare, or needs more time, I suppose no litigant in person ever finally feels fully prepared to the extent that he or she would wish. The fact is the father has had plenty of time since 30th April 2002 and more relevant perhaps he has known he has not had a solicitor for one month, which seems more than sufficient time to prepare even though there were other calls on his time including concerns regarding contact with his children. It seems to me weighing the adjournment, it seems to me the balance comes down in favour of the Court dealing with the matter so that some kind of interim solution is achieved. Accordingly the applicant is refused and the application will proceed."
[5]As a matter of domestic law, for Mr Pine to succeed in upsetting that judgment on the appeal he has to show that the exercise of the discretion was outside the generous ambit within which there is room for reasonable disagreement. In my judgment, he has no real prospect whatever of establishing that. The judge was correct in finding that adequate time had been given to the respondent to equip himself to deal with this case. The wife was living in parlous conditions and, in the balance that has to be held between the difficulties the litigant in person faces and the difficulties a party faces in not being able to gain access to the courts, the balance came down in the wife's favour. Apart from satisfying me that the judge was plainly wrong, it seems to me to be irresistible that the judge was plainly correct in refusing that adjournment.[6]Mr Pine then has resort to the Human Rights Convention. Article 6 of the Convention provides that - "In the determination of his civil rights he is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."[7]It is important to note that the Convention is actually expressed in terms that "every one is entitled to a fair and public hearing within a reasonable time". Every one necessarily includes the other side and in Human Rights law a balance has to be struck between the rights of both sides to the contested litigation. That is essentially the balance the judge held. For my part I can see no possible breach of Article 6 (1).[8]Mr Pine however is more reliant on a breach of Article 6 (3) for his complaint that he did not have adequate time or facilities for the preparation of his defence and he had a right to defend himself through legal assistance of his own choosing. He complains that, first, he had insufficient time and, secondly, that the judge in refusing to allow his McKenzie friend to act as an advocate breached Article 6 (3). There is one fatal flaw to this submission which is that Article 6 (3) applies where a party is charged with a criminal offence. Here, there is no question of a criminal offence being litigated. This was civil litigation, and the appropriate article is Article 6 (1) with which I have dealt.[9]There are other suggestions in the skeleton argument that Mr Pine is concerned that he has been unfairly discriminated against, I think because of favourable treatment to the wife. That is unsustainable because the judge looked at the matter dispassionately and there is no hint or suggestion whatsoever of any sexual or other discrimination being exercised against Mr Pine. That application has no prospect of success and must be dismissed.[10]Turning to the merits of the matter before the judge, the judge made a careful review of the facts. He had regard to the dispute over these young children. He recognised that he was making an interim order. He was satisfied (as appears from page 11 of the note of his judgment) that there was insufficient basis to suggest the mother was doing anything other than looking after the children perfectly competently, a view reinforced by the observation of the children and family reporter. He took into account these factors: first, the mother had always been the primary carer and that, it should be stressed, was, it was said by the judge, without wishing to diminish or belittle the important role of the father in these children's lives. He has been having, I am told, regular contact. Having been a man who worked from home, I am sure he played a significant part in their lives and upbringing. There is abundant evidence for the judge to find that the mother was the primary carer. He found, secondly, that the father was untried as a full time carer and he expressed some qualms about the husband's ability over a longer term "to put up with the daily grind of attending to daily needs of four small children". He did not think father would find it at all easy to fit in what is needed for full time care for the children with his teaching commitments and other interests.[11]Mr Pine tells me that the present plan is to employ a nanny whose salary would be paid by a municifent friend. I do not know if that was put to the judge; there is no mention of it in the judgment. It does not seem to me to be an adequate substitute for the care of a mother who is able to devote herself fully to looking after this young family.[12]The final fact for the judge was to make an interim order changing the present arrangements and risk a further interruption of continuity of care if, on the final hearing, care had to revert back to the mother. I am not entirely certain to what extent there is actually an application for permission to appeal that part of the order, but all of it seems to fall well within the common sense lines one would expect in a case of this kind. An application for an interim residence order is extraordinarily difficult to appeal and I see no prospect in this case of an appeal being successful against that order. A date is fixed for later this year when the matter will be looked at and final decisions, insofar as there are ever final decisions over children, will be taken.[13]I turn to the main application, the object of the application for a stay, that is to say the order made to regulate the occupation of the home. The judge recognised it was - "a draconian step for any court to take and it is one that should only be taken as a last resort and should be reserved for exceptional cases."[14]The judge had recited the unfortunate conditions under which the wife and the children had to exist. It appears that they are sharing a two-bedroom flat used by the two daughters of a friend. One of those children apparently suffers schizophrenia and is particularly pernickity over the state of the occupation of her room in that two-bedroom flat. The result is that mother and four children are all in one room with a double bed. As the judge held, and I would have thought this was a statement of the obvious:
"The present accommodation for the mother and the children is plainly unsatisfactory."
[15]It could not carry on as it was. The mother made enquiries of the local authority and was told that she might be able to obtain bed and breakfast accommodation outside the Mill Hill area where the family home is situated. The father - to be fair to him - has recognised that for the children to go into bed and breakfast accommodation would be, as he put it, a pretty awful prospect.[16]The judge's task was as to establish whether the husband had an interest in the property. Undoubtedly he did. The property has been his home for something like 50 years. On the death of his mother it apparently evolved to his brother as to one half, and as to the husband a quarter, and as to his children the remaining quarter.

The judge said this (page 13):

"The father is unclear as to whether and to what extent there has been a change in quantum of the brother's interest. It emerged in cross-examination that there had been some change. The father sold his flat he owned not long after his mother died and gave money to his brother about £40,000 in order it seems to reduce the brother's interest. The father is totally unclear about what is left by way of interest of the brother. The brother was also not very satisfactory witness and in my view was trying to help the father as much as he could consistent with not mis-stating facts. He says his interest, which is recorded somewhere, is less than 25%."
[17]The important thing however is that this husband unquestionably has some interest in the property. He has therefore a beneficial interest which the court is empowered to regulate. The fact is that whatever his brother's entitlement to a beneficial interest and whatever his adult son's entitlement, neither of them has made this property their home at any time during this marriage. The son will have visited but there was no evidence whatever that as a matter of real practical politics this family would not adjust itself so as to leave Mr and Mrs Pine and their four children in occupation. And if Mr Pine has to go it seems unlikely that either the adult son or the surgeon brother will seek to make life so unpalatable for this wife and her children so as to make any difference to the result of the judgment.[18]The judge went on to exercise his powers having regard to all the circumstances, first, the housing needs and resources of each of the parties. Apparently the wife's need was rightly described as awful or her present circumstances were rightly described as awful. The father also had need for accommodation, and in this case there was a special feature. He needed a place to live and a place to teach. His business is that of providing tuition to pupils who come to his home. The judge was aware of that as I shall demonstrate.[19]As to the financial resources of the parties, the judge found the father to have the edge in terms of being a single person who could be rehoused by friends and in the short term accommodated. He could also reasonably be expected to obtain some remuneration by visiting his pupils rather than they visit him. The likely effect of the order would be to cause upheaval to the father and considerable disruption to his teaching as against leaving the mother and children in what was rightly described by the judge as grossly inadequate accommodation.[20]Finally, the judge had regard to conduct. I need not spell out the detail of that conduct. Suffice to say the judge accepted, after hearing oral evidence and having had the advantage this court does not have of assessing the witnesses, that the mother's evidence was to be preferred over the father's evidence and that, accordingly, in a number of instances it was demonstrated to his satisfaction that he had been violent towards her. That is a sad finding to have made because, as it is put in one of the written statements to which I have been referred, Mr Pine does give every appearance of being a gentleman, but it is an unfortunate fact demonstrating the unhappiness of this marriage.[21]The essential appeal against that judgment can be broken down into three aspects. The first is that the judge did not hear witnesses whose statements were put in at the late moment and read by the judge and he did not have sight of all relevant documents. Looking at what Maria Perry-Robinson and what Fiona McDonald would have said, I am not surprised that the judge felt under pressure of time, that their evidence would not take the matter much further forward. If he did not have sight of all the documents counsel submits that that is a surprise because the judge was flexible in allowing the husband to place before him what he wanted to have placed before him. None of those matters seem to give rise to such a question of procedural unfairness such as to undermine the judgment.[22]The substantial challenges which are more important relate to the position of the son who has an interest in the home. Mr Pine complains that he was ignored. He was not ignored by the judge who made reference to his interest. If the judge ignored any suggestion that he was exercising that interest he was entitled to do so because it was never asserted that the boy had made this his home or was likely to be making it his home, and the judge could deal with the facts and with realities as they appeared and as I have recited them. More importantly, Mr Pine complains that the effect of this order is not only to deprive him of a home but of a livelihood. I have great sympathy with that position but it is[23]obvious from the reading of the judgment that the judge was very much alive to that fact. He referred in a number of places to the tuition carried on in the home. Counsel has listed those references and I have cited many of them. For example, on page 8 the judge refers to the home being the place from which he teaches. On page 12 the judge said expressly:
"To make an Occupation Order in this case has particularly unappealing consequences as the father works from home and has teaching aids and books and material all in the home."
[24]On page 14 he emphasised that he had to have regard to the father's need for a place "to live and a place to teach". When he dealt with the financial resources the judge acknowledged that - "it would be difficult for him to find money to rent elsewhere, especially a place in which he could teach."[25]On page 15

the judge made this observation:

"It has been suggested he could go to pupils' homes which seems is not an unreasonable suggestion and might be welcome by parents."
[26]On that page, dealing with the likely effect of the order, the judge referred to the upheaval in the father's life and considerable disruption to his teaching. It is therefore apparent that the judge had this factor well in mind. The weight he gave to it was entirely a matter for him. This court will not interfere unless the judge made an error which was plain and obvious. He has not been demonstrated to have fallen into that trap. These were matters for him to weigh and I cannot say that his discretion was plainly wrongly exercised.[27]On the merits of the main application I again find no real prospect of success, and dismiss the application for permission to appeal. It follows therefore that the stay is not to be further extended.

Order

Application dismissed with the costs. Undertaking to allow applicant in occupation until Thursday

Cited in 1 later judgment