RE: B (Children) [2002] EWCA Civ 503

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NEWCASTLE UPON TYNE COUNTY COURT
(JUDGE WHITBURN Q.C.)
[2002] EWCA Civ 503Case No B1/2001/1974Venue Royal Courts of Justice, Strand, London WC2, Thursday, 14th March 2002
Between
RE: B (Children)
Before
Lord Justice ThorpeTHE CLAIMANT appeared in Person.THE DEFENDANT was not present and was not represented.Date 14 March 2002
[1]Thursday, 14th March 2002 LORD JUSTICE THORPE: Mr. Peter Middleton applies for permission to appeal an order of his Honour Judge Whitburn Q.C. given in the Newcastle upon Tyne County Court on 8th August last year. There have been long-running proceedings arising out of disputes as to Mr. Middleton's contact with the two children of his relationship with Mandy Beaton. The children are Peter, who is now 16 years of age, and Rebecca, who is now 10.[2]It is yet another of these tragic cases where the courts have achieved very little success in advancing the fractured relationships within the family or containing the litigation. There have been a number of hearings. There has been a good deal of professional work done by a local paediatrician, Dr. Halse. And yet, here we are, some years on, without any direct contact at all between this father and these two children.[3]Judge Whitburn has been the judge who has consistently taken the case, and he has formed a strong view about Mr. Middleton. He describes him as both obstinate and single-minded. He points out that his personality traits have led to a falling-out between Mr. Middleton and Dr. Halse and between Mr. Middleton and the lawyers who have represented him.[4]It is the unfortunate fact that, on the second day of the two-day hearing, counsel who then represented Mr. Middleton, Mr. McDermott, applied to the judge to be released from the case both on his own behalf and on behalf of his instructing solicitors on the grounds that the conflict between him and his client was too great to allow him to continue. In particular, he said that the relationship had sunk as a result of Mr. Middleton's dissatisfaction with the way counsel had cross-examined Dr. Halse. So thereafter Mr. Middleton proceeded as a litigant in person.[5]I have read with care both Mr. Middleton's skeleton argument in support of this application and also the judgment of Judge Whitburn. The judge towards the end of his judgment makes it plain that the survival of indirect contact was a narrow choice. In paragraph 25 of his judgment, he says:
"I make it clear that having considered this matter I was minded to accede to the respondent's application to sever all contact. It is only on the finest balance that I can consider that the child (Rebecca's) long term interests will be served by continuing indirect contact and it is to be hoped, very gradually, with the help of Dr. Halse, some form of supervised direct contact."
[6]The judge excluded Peter from the order on the basis that he was rising 16 and could make up his own mind about what sort of relationship he had with his father. He did include Mr. Middleton's own mother in the regime by introducing her into the court order, although he was somewhat suspicious of her independent application, which he described as being, in effect, parasitic. The judge specified that there should be a review in this year, specifying the month of June.[7]Mr. Middleton has told me today that he has no confidence in Judge Whitburn, who he feels will always find against him. That is a perception which is purely subjective. There is not the smallest evidence in this transcript that Mr. Middleton has had other than a fair and conscientious trial; but he tells me there is a fixture on 19th April before Judge Mynot(?), and it may be that his confidence in the system will be to some extent buttressed if another judge looks at the case.[8]This is an absolutely hopeless application for permission so far as the Court of Appeal is concerned. The judge has made findings of fact and findings as to personality with which this court could not possibly interfere. The judge has then exercised his discretion, tipping the balance in favour of Mr. Middleton by maintaining the regime of continuing contact.[9]It will probably be useless for me to say this, but I do say it since Mr. Middleton has taken the trouble to come all the way from Newcastle to make this application. His only hope for the future is to stop fighting the professionals and to collaborate, however difficult that is for him. The judge has held out the prospect of direct contact sometime in the future, providing that Dr. Halse can develop the prospect of that satisfactorily. That is a very important passage in the judgment. So, however hard it is for Mr. Middleton to accept it, he must see that the only hope is not to continue to challenge Judge Whitburn, not to continue to try and appeal, but to somehow or other bury his pride, collaborate with Dr. Halse and hope that the position can be moved on to some sort of direct contact. After all, Rebecca is only 10. There may be six years before she is regarded as old enough to make up her own mind, and it will be extremely sad if nothing is achieved progressively within that period.[10]I know that Mr. Middleton may be resistant to my analysis of the position. But, in refusing this application for permission, I cannot waste the opportunity of urging him to stop fighting the professionals and to somehow go gently forward along their way, in the hope that something can be achieved by way of direct meetings between him and Rebecca during her adolescence.

ORDER

Application dismissed.

Cited in 1 later judgment