B (a child), Re [2006] EWCA Civ 1906

Case No B4/2006/1996[2006] EWCA Civ 1906
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHAMPTON COUNTY COURT
(MS RECORDER RALPHS)
Venue Royal Courts of JusticeDate Tuesday, 5 th December 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE SCOTT BAKER
LORD JUSTICE WALL
IN THE MATTER OF B (a Child)
(DAR Transcript of
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THE APPELLANT APPEARED IN PERSON.
MR A HAND (instructed by Trethowans) appeared on behalf of the Respondent.
J U D G M E N T

LORD JUSTICE SCOTT BAKER:

[1]This is an appeal by a father against an order made by Ms Recorder Ralphs in the Southampton County Court on 18 August 2006 pursuant to permission granted by Wall LJ on 18 October. The case concerns a little girl, to whom I shall refer as P, who is aged six. On 16 May 2006, to begin with the relevant history for present purposes, HHJ Milligan made an order, which is to be found at page 23 of the bundle, providing as follows: he adjourned issues of residence and contact to the 26 September 2006 in the Aldershot and Farnham County Court. A Ms Butler of CAFCASS was to investigate issues of residence and contact and was to see P at the house of each parent and then report by 8 September. Defined contact was ordered to the father up until the end of August 2006. Leave was given to both the mother and the father to file a statement with up-to-date proposals for residence and contact. The mother was ordered to encourage P to telephone her father. Previous orders and undertaking of the mother were discharged.[2]The order recites that undertakings were given by the father as attached to the order but no such undertakings are to be found attached to the order in our bundle and Mr Hand, who has appeared today for the mother, says that as far as he is aware there were no undertakings obtained from the father on that occasion. Further, there was a penal notice attached to the order. On 2 June the mother applied, and we find this at page 25 in the bundle, for the penal notice to be removed because the obligations on her were too vague and, secondly, for HHJ Milligan to recuse himself. That was on the following grounds:
“The Judge concluded during the hearing on 16 May that he would not go on with the case because of the cross-accusations of apparent bias but decided after weighing the balance of the desirability of judicial continuity and the avoidance of delay that he would continue to hear the case. Common law does not permit such balancing exercises and such application for recusal should be founded upon the test of whether the circumstances would lead a fair minded and informed observer to conclude that there was a real possibility that the judge was biased. If on an assessment of all the relevant circumstances the conclusion was that the principle of judicial impartiality either had been or would be breached the Judge would be automatically disqualified from hearing the case. It is not a discretionary case management decision recorded by weighing various relevant factors in the balance. If the court had to predict what might happen if the hearing went ahead any doubt should be extinguished by recusal.”
[3]The mother’s application came on on 21 July when HHJ Milligan made the following order which is at page 30 of the bundle. He said that he was to be released from the case forthwith; that the hearing at the Aldershot and Farnham County Court on 25 September was to be vacated and the case to be set down for urgent hearing on the first two days available before a circuit judge or a recorder on a date to be fixed; and he said that the mother’s application, which was for removal of the penal notice, was to be listed for urgent hearing with a time estimate of half a day on 18 August.[4]So the residence and contact hearing that had been fixed for 25 September was to go off and be re-fixed for an urgent hearing before another judge or recorder. The mother’s application to vary the penal notice was to be heard on 18 August with a time estimate of half a day. On 4 June the father had made an application asking for an order in these terms:
“At present a shared residence order is in force with the respondent mother having the main day-to-day care and control. I am happy for the shared Residence Order to remain in force but would wish the main day-to-day care and control to rest with me.”
It is not entirely clear how it was envisaged by the father that he should have the day-to-day care of P but there should nevertheless remain a shared residence order. Be that as it may, that was one of the matters that was stood over to be resolved by the two-day hearing that was due to be fixed.[5]On 11 August the father wrote to the court in the following terms. The essence of the letter was, first, that he could not make the hearing that was due to take place on 18 August, though it is to be noted that he did not apply for it to be adjourned. Secondly, he did not think that the court should entertain an application to vary the penal notice. Third, he could not understand why his application of 4 June, which he says was due to be heard on 21 July, had not been scheduled. Fourth, he was concerned that because of HHJ Milligan’s decision to recuse himself, there was no more contact planned after the end of August. And fifth, he said that he hoped some contact could be arranged for the sake of P. He said this:
“I do not have a school holiday timetable for the next school year, yet I hope some contact can be arranged for the sake of P. I hope in the light of events and the obstructions that stopped P spending the time with me […] as per the original order made last November by HHJ Milligan that the following contact can be ordered in my absence …”
Then he spells out four arrangements, starting the first one on 22 September and the last one relating to the Christmas holiday period.[6]His concerns seem to me to have been entirely understandable. All issues of residence and contact were open and would remain unresolved until the hearing that had been fixed, or that was due to be fixed, to replace that that was going to take place on 25 and 26 September. The CAFCASS officer had yet to report but his ordered contact was about to run out. He wanted to set out contact details until the end of the year, no doubt to cover himself until the case was finally resolved.[7]This letter was followed by another letter, four days later, in the context that he had then been able to find out the school holidays for the next year. The learned Recorder appears to have treated the father’s two letters as an application to resolve all outstanding matters. She made what I can only describe as an astonishing order. It is plain to me that the father did not have a fair hearing, as he complains, and indeed he did not have a hearing at all.[8]The clue to the judge’s approach seems to be found at page 35 of the transcript of the hearing. The Recorder seems to be saying, referring to the two letters which I have read, if I read charitably between the lines: I have had enough of this litigation -- I want to get another pattern of contact, then let us move forward.[9]The mother’s civil aid certificate was not extended, and we can well understand why, to cover representation on this appeal. Mr Hand, however, has very helpfully stepped into the breach and acted pro bono for the mother and done his valiant best to support the judge’s order. It is his submission that the judge was entitled to take the approach that she had because it could be inferred from the two letters written by the father that he was inviting the judge to resolve all outstanding matters in his absence.[10]For my part, I am quite unable to read the letters in that way. It seems to me that what the father was saying was that he hoped it would be possible to obtain an order for defined access in terms that he set out, in order that he could be tided over with contact covered until the main substantive hearing took place.[11]I move next to the order that the judge made. It seems to me to be in a somewhat confusing form. It begins with no less than 11 separate recitals, so-called. These include that the shared residence order made by consent in November 2005 is, by consent, to continue; that the court was concerned about the number of applications made by both parties and about the parties’ inability to communicate with each other; and that a request to the CAFCASS officer was being made to telephone the father and tell him about changed hand-over arrangements for 31 August. The judge thought that the father ought to give an undertaking to the court about collection and delivery arrangements.[12]I interpose to say that the judge very substantially re-wrote the contact arrangements, giving various options to the father but requiring the contact on the shorter occasions to take place within 30 miles of Romsey and prohibiting the father from having contact at his home in Stamford, in Lincolnshire. Next, that the father was to write to the court and the mother by 5 September, choosing between the various contact arrangement options; that the CAFCASS officer was released from her obligation to prepare a report on residence and contact which she had previously been obliged to do by 8 September; and finally that the parties were to be invited to agree a schedule of contact covering the period August 2007 to August 2008, that they were to do so by 1 June 2007 and that they were further to agree or be invited to agree a parenting plan.[13]There was then an undertaking by the mother in what seemed to me to be rather vague and unsatisfactory terms. Undertakings, like injunctions, need to be clear and concise, lest the situation arises where proceedings have to be taken for their breach. This was followed by a release of the father from undertakings said to be attached to the order of 16 May. As far as has been ascertained in this hearing, such undertakings did not exist.[14]There then follow the nine provisions of the order. These include: discharge of the penal notice and its replacement with undertakings; release of CAFCASS from its obligations to prepare a report; vacation of the hearing date, which in any event had not been fixed; an order that P was to live with her mother until August 2007 and stay with the father as defined but with the various alternative options for contact to the father. The order can be summarised quite shortly as follows, I quote from Mr Hand’s skeleton:
“Previous contact orders were discharged together with a penal notice. She replaced the penal notice with a recital of obligations and an undertaking given by the Respondent mother. Shared residence order concerning P was confirmed. The father’s application for variation was dismissed. Set times were given when P should live with her father over the next 12 months - broadly one weekend every three weeks, and extended staying contact in the school holidays including half-term.”
[15]Put shortly, what the Recorder has done is to decide the future of P and make a detailed order to that effect, covering at least the next year. She has done this in the absence of the father, without due process bringing the matter before the court and without any prior notice to the father. It is hardly surprising in my judgment that the father feels aggrieved. Far from lowering the temperature of a highly charged case, I regret to say that my impression is that the judge has increased it. The father had good reason to believe that the future of his child was to be decided at a two-day hearing to be fixed very soon after the end of September and following a report from a CAFCASS officer. All the Recorder was entitled to do on 18 August was to deal with the issues that were properly before her and that, in essence, was the penal notice and, of course, she could have made any orders implementing any agreement between the parties that there may have been about any other matters.[16]In my judgment the Recorder was entitled to deal with the penal notice and she was entitled to make a contact order but only insofar as it was agreed by the parties -- which it was not. The father’s grounds of appeal are condensed into four paragraphs:
“There was not a fair trial of the issues. Indeed the matters in issue were purportedly dealt with by Recorder Ralphs without oral evidence being heard at all and no CAFCASS report being available. The ‘decisions’ was made regarding P’s contact to the applicant father denies P her right to a family life and privacy with her father. The applicant father believes there was an element of bias. The hearing on 18 August 2006 was for two relatively minor points made in the respondent mother’s application to be heard. Instead everything was purportedly dealt with and the court’s involvement brought to an end. The father’s application for residence has just vanished along with his (paid for) C2 application.”
[17]It is really, it seems to me, grounds one and four that are central to this appeal. In my judgment there is considerable substance in both of them, which are properly made out. The judge in her order made a number of substantial changes to the position as it was before she embarked on the hearing. Of particular significance, she decided to try and create closure for this ongoing dispute -- a matter which is entirely creditable in itself but she should not have done so without having the matter properly constituted before her and, in particular, giving the father an opportunity to make whatever representations he wished. The Recorder decided to make her order without the benefit of the up-to-date CAFCASS order that had been obtained and she made substantial and significant changes to the previous contact pattern, including imposing a 30-mile restriction on the area where the father could take his daughter for the weekend contact visits. Furthermore, as the father submits in his grounds of appeal, his application to have the permanent care of P simply, as he put it, disappeared out of the window.[18]The court has been provided with and read, as no doubt has the father, a transcript of what occurred before the Recorder. Reading that document can only have inflamed the father’s feelings that he did not have a fair hearing before the Recorder on 18 August. There are, I regret to say, a number of unfortunate and unjudicial comments on the part of the Recorder during the course of that hearing. Examples are to be found at page 17 where the Recorder said:
“The father is going to complain about the weekends and being restricted to the Romsey area. That is going to be the rub it seems to me. I see the sense of it from P’s point of view absolutely and I think, therefore, a recital to the order that the half-term holidays father is having an extended period of half-terms. That is a first draft Mr Belvin then?”
Mr Belvin said “yes” and the Recorder said:
“In recognition of the fact that the weekend holidays, the weekend contacts during term time, will be visiting only and that the reason for the visiting only restraint -- well sorry not visiting only I beg your pardon -- will take place in the Romsey area.” “Mr Belvin: In the Romsey area, yes? “Recorder: That restraint being considered, by the court, to be in the interests of P because of the travel time, the journey time involved. That is a rough draft and I think a recital so that it is plain to Mr B how this has come about and the thinking behind it.”
[19]The critical factor is that there had been absolutely no input from the father into that very considerable restriction on his contact. There was then a discussion about whether the restriction should be 25 miles or 30 miles and the Recorder said:
“A 30 mile radius and then that gives him much more scope. Is he going to complain about the cost of B&B? I mean he does not actually save anything in travel, does he? I do not know what his financial circumstances are at all.”
Then there was a discussion about the father electing which of the various access options he was going to choose by a specific date. 5 September was suggested and the Recorder said:
“I think do not put once and for all because he will bridle at that, will he not? Just put here elects which of the following patterns he wants to adopt for weekend contact which comes to the same thing but --”
[20]Then over the page at page 20 the Recorder says:
“Let us assume, and I may be doing him a great disservice, but let us assume that whatever I order today Mr B is going to have apoplexy if it is not entirely to the letter of what he wants.”
Then:
“Which is going to make him angrier? Not to be told what I have done today before his next contact or to be told before his next contact so he can give P a really rough time because of the dreadful mother she has got? You know him. I need guidance.”
Then:
“We can make sure that the court gets this order through at an appropriate time for P.”
Finally at page 35 when the question of costs arose the Recorder said to the mother’s counsel:
“Recorder: You are going to seek to persuade me that Mr B’s a pain in the neck and he should pay?” “Counsel: I am your honour and I will tell you why.”
There followed then further discussion, which admittedly ended in the Recorder making no order for costs, having been invited by counsel for the mother not to do so.[21]The question, therefore, to my mind arises: what should happen next if -- as in my judgment is the right course -- the order of Ms Recorder Ralphs is set aside? It seems to me that it is essential that there is a full hearing of all outstanding matters at the earliest date and that there should be an expedited hearing to that effect. That, however, is going to be into the New Year because, inevitably, it will take some time for the CAFCASS officer to produce an up-to-date report and for available court time to be found in – I think the most convenient place agreed by counsel is the Bournemouth County Court.[22]It seems to me that there should be a directions hearing in the meantime. We are told that HHJ Meston very helpfully makes himself available to deal with such matters at short notice and that it would be appropriate to direct that this matter is listed for directions before him at the earliest opportunity between now and Christmas, so that he can set the arrangements for the substantive hearing.[23]In the meantime, it seems to me appropriate that the father should have access, as has been promised, for this forthcoming weekend. The most convenient arrangements seem to me to be that he should collect P from the mother’s address at 4.30pm on the Friday evening, returning her there by 6 o’clock on the Sunday evening; there being no restriction of 30 miles or anywhere else as to where he should be permitted to take P. Obviously, he is anxious if possible to take her back to his home in Stamford.[24]The only aspect of the Recorder’s order that, it seems to me, should stand is that part of it that deals with the penal notice and removed it from the earlier May order. As to that, the father had notice of the application. He may have had very good reasons for not attending but he did not attend and the judge was perfectly entitled to go ahead and deal with that aspect of the case in his absence. Recorder Ralphs’ order was somewhat complicated and it may need a little care as to those precise parts of it that are discharged.[25]But, for my part, I would allow the appeal and make the order that I have indicated.

LORD JUSTICE WALL: I agree. Hearing the argument today has amply reinforced the view which I formed when I heard Mr B’s application for permission to appeal. Even given the very wide scope which a judge hearing family proceedings under part II of the Children Act 1989 has, in my judgment, for the reasons my Lord, Lord Justice Scott Baker, has given, Recorder Ralphs went way beyond what was properly open to her and, as a result, her order cannot stand for the reasons my Lord has given.

[27]I would like to express my gratitude to Mr Hand and to those instructing him, who have appeared today pro bono, and if this matter is to proceed will plainly need to pay, if they are still instructed, a part of ensuring that the matter is swiftly brought to the attention of the circuit judge.[28]In my judgment what this case now needs, again for the reasons my Lord has given, is an experienced and calming hand and a rapid resolution of all outstanding issues. That in my view can be best done through the mechanisms my Lord has proposed.[29]Like him, therefore, I would allow the appeal and make the order he suggests.

Order

Appeal allowed.