D (A Child), Re [2005] EWCA Civ 487

Case No B4/2004/1526[2005] EWCA Civ 487
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM CARDIFF CIVIL JUSTICE CENTRE
(HIS HONOUR JUDGE MASTERMAN)
Venue Royal Courts of JusticeDate Tuesday, 15 March 2005
Strand
London, WC2A 2LL
B E F O R E:
LORD JUSTICE THORPE
LORD JUSTICE HOOPER
D (A CHILD)
(Computer-Aided Transcript of the Stenograph Notes of
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The Appellant appeared in person
The Respondent appeared in person
J U D G M E N T
Tuesday, 15 March 2005

LORD JUSTICE THORPE:

[1]This is a permission application which Black J, on 4 November 2004, directed in for oral hearing on notice with appeal to follow if permission granted. The single point that concerned Black J, and to which her order was limited, was the procedural fairness of the trial conducted by His Honour Judge Masterman in the Cardiff County Court on 24 June 2004.[2]In order to identify the judge's concerns I need start with the order made on 12 June 2004 by the district judge in the Newport County Court, District Judge Rachel Evans. She was making directions to carry the issues between the parents forward to a contested hearing on 23 June 2004 in Newport with a one-day time estimate. The issues to be decided at that trial concerned the fathers' contact to S, the daughter of the parties born on 30 August 1997. The first direction was that the CAFCASS officer should file and serve her report by 26 March. The next relevant direction was that both parties to have leave to file and serve statements of fact by 4.00 pm on 24 April 2004, but with the requirement that, as before, statements should concentrate more on the future than on the past. Unfortunately, there was delay in the preparation of the CAFCASS officer's report which was not available on 26 March as it should have been. On 8 April another district judge in that court accordingly extended time to 14 May. When that order was served on the mother she wrote on 22 April to the court with the submission that this caused delay throughout the entire timetable. She said that the order of 12 February 2004 had allowed a period of 28 days between the filing of the CAFCASS officer's report and the filing of the statements of the parties. Accordingly, she said that for statements to be filed 28 days after CAFCASS report would mean a revision of the order of 12 February extending the parties' time to 4.00 pm on 11 June. That submission was effective since by an order of 4 May District Judge Evans extended time for the parties to file their statements to 11 June. That led to a further communication from the mother of 24 May in which she pointed out that on the day she wrote, the CAFCASS officer was already ten days out of the extended time which had been allowed by the order of 8 April. She pointed out that she would be away for ten days at the end of May, beginning of June, and for four weeks from mid-July to mid-August. She concluded by saying:
"What I fear most is the hearing having to be adjourned for one reason or another at the last moment, rather than now. The CAFCASS report is nearly NINE WEEKS late, and the hearing only FOUR WEEKS away."
What the mother did not know, and could not have known, when she wrote was that the CAFCASS officer had in fact completed her first report on 20 May, and it seems that it was probably received by the court on 25 May. However, I surmise that the letter of 24 May provoked a further order from the district judge, dated 28 May in these terms:
"CAFCASS Officer must file her report by 12 noon on 4th June 2004 FINAL."
I surmise that the district judge issued that order in ignorance of the fact that the CAFCASS officer's report had in fact come to hand on 25 May.[3]The original directions order of 12 February had in paragraph 7 included a direction or steer to the CAFCASS officer in these terms:
"Debbie Owen-Winn to attend and to update her report if necessary."
Under that discretion the CAFCASS officer completed an addendum report on 17 June which was received by the parties on 22 June, and further, she attended the hearing on 24 June.[4]Unfortunately, on 22 June it was discovered that the judge in the Newport County Court could not hear the case since he or she had apparently at an earlier date acted for the father. Accordingly, the Newport County Court made arrangements for the case to be transferred to Cardiff and Cardiff Court was able to arrange a judge to hear the case, Judge Masterman.[5]The extension of the time for filing of statements was unfortunately not regarded by the parties as scrupulously as it should have been. To be fair to the father, Mr Dougherty, he did file his statement on the last available date, 11 June. What he neglected to do was to serve it, and he has said today very candidly that that was an oversight on his part.[6]The applicant, Mrs Francis, did not perform so well. She did not seek to put in a statement until 22 June. She says that she filed it that day before receiving the telephone call from the court explaining the transfer to Cardiff. She, too, seems not to have regarded the obligation to serve. And so it transpired that at the hearing in Cardiff each party was effectively presenting their competing cases without having had the usual opportunity to consider and reflect on the written case that the other was advancing.[7]Black J on 4 November directed that this court should have the advantage of a transcript of so much of the proceedings on 24 June as dealt with procedural issues. We accordingly have before us some nine pages of transcribed and selected passages from the day's proceedings. The judge commenced the hearing at 10.30 and ran a conventional day with a lunch adjournment between 1.00 and 2.00. It seems that he completed the submissions of the parties at about 4.30 and then retired to either put his thoughts in order or make some notes to aid an extempore judgment. We are told that he concluded the day's hearing at about 5.30 pm. So it is manifest that the case received in full measure the one-day time estimate that had been originally identified in the order of 12 February.[8]The transcript shows that at the outset, the judge tried to get the shape of the case. He established that he had before him two litigants in person and that he had before him not only the parties, but also their respective partners. The judge observed to those two:
"Now, Mrs Deverson and Mr Francis, neither of you is a party to this but I suspect you may possibly be witnesses in this case. Is that the case? Does either of you want to call your respective partners as a witness?"
Each said that that was quite a possibility. Mrs Francis went on to ask the judge if her partner, Mr Francis, could act as her advocate, but that application did not succeed. It is clear that the judge refused that application on the ground that he did not think it would produce a level playing field. He said:
"Mr Francis is in a special position, as I understand it, being either a solicitor or an ex-solicitor... and I think it would introduce a degree of unfairness if we were to do it that way."
Mrs Francis said: "I accept that". The judge, after further exchanges, said: "I am just trying to establish exactly what the issues are. Right. Can I just ask Mrs Owen-Winn, first of all. You knew these issues, I think, did you not, Mr Owen-Winn, and so there is nothing about this that takes you by surprise, I take it." The CAFCASS officer said nothing that she had heard. The judge asked whether she would think it worth exploring compromise. She said that she thought it was unlikely to be achieved, so the judge said: "It seems to me that there is little choice but for me to hear your respective cases about this. So the next question we have is whether we hear from Mrs Owen-Winn first or later." The parties agreed that she should go first, and that she did. Mr Docherty was first to testify, and when he was followed into the witness box by Mrs Francis, it emerged that he, the judge, had read a statement from Mr Docherty which he assumed Mrs Francis had read, but she said she had not had the statement; and so the judge said that he thought that in that respect each of them was in the same boat and that the statements be read during the lunch adjournment. The applicant commenced her evidence briefly before lunch and concluded after lunch. Mrs Francis then applied for Mr Francis to give evidence as a witness. The judge refused that application, saying: "Well, again I raised this at the beginning. Technically, you see, there are no statements and the whole idea of these proceedings is that each side should know really what the other side is going to say and should therefore file statements of any evidence they are going to rely upon. There has not been any application to do that. I fear that, by calling Mr Francis, Mr Dougherty will then say he wants to call Miss Deverson and we will be in for another hour or two of evidence with great scope for cross-examination and, frankly, I want to get this case sorted out now. If I agree to this we are going to run over into another day... I am pretty sure I would not be able to complete this case tomorrow. So I am afraid I am going to refuse to hear any more evidence. Right, are you ready to make your final remarks?" So at the end of that brief review of the proceedings we can see that this was far from being a model. There was unfortunate slippage in the preparation of the CAFCASS officer's report. Neither side complied with sufficient attention to the direction for filing and exchange of statements. The need for the Newport judge to recuse himself was unfortunate, but in the event the availability of Judge Masterman for the whole day allowed the great misfortune of further adjournment to be avoided.[9]Now, Mrs Francis has made a number of telling criticisms to us this morning. She complains that her entitlement to a carefully considered fully prepared case has been either denied or disregard in the litigation chronology which I have outlined. She particularly says that she was entitled to have a considerable period in which to reflect upon and respond to the CAFCASS officer's assessments and opinions. She points out that the second report was a report that effectively she had no opportunity to challenge by way of marshalling possible witnesses to respond. She says that she was denied the opportunity of calling Mr Francis for the simple reason that the judge was either impatient or short of time.[10]The very short answer to all these assertions of unfairness and litigation prejudice is that they were simply not advanced in the court below. Mrs Francis had demonstrated herself as acute in her ability to understand the processes of preparation for trial and had been swift to complain to the county court at two separate stages during the preparation of the case. If she had arrived at Cardiff on 24 June with a burning sense that she was inevitably going to be denied an opportunity to advance a meritorious case because of the very late arrival of the court welfare officer's report, or because of the fact that Mr Docherty's statement had not been served upon her when filed with the court, it is absolutely apparent to me that she would have done just that. However, it is clear from the transcript that she consented to and cooperated in a process of trial set by this very experienced circuit judge in the context of two litigants in person who had a tendency perhaps, unless guided, to hark too much on the past and to give too little regard to the essential question of what should happen in the future.[11]I have reached the unhesitating conclusion that there is no substance in the assertion of prejudice and unfairness. The manner in which the judge conducted the case insofar as the brief transcript extracts reveal was characteristic of a judge with very great litigation experience who had a proper appreciation of the need for fairness and even-handed treatment of litigants in person. I would not myself consider this a case suitable for the grant of permission.[12]I would, therefore, refuse the permission application, which means that we need not proceed to rule on the appeal.

LORD JUSTICE HOOPER: I agree. (Application dismissed; no order for costs).