N-S (Children), Re [2006] EWCA Civ 500

Case No B4/2005/2764[2006] EWCA Civ 500
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
(HER HONOUR JUDGE STEEL)
Venue Royal Courts of JusticeDate Thursday, 9 th March 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE THORPE
LADY JUSTICE SMITH
IN THE MATTER OF N-S (CHILDREN)
(DAR Transcript of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MISS A MUNROE (instructed by Messrs Tanburghs, London W12 9RA) appeared on behalf of the Appellant.
MR G LAZAMS (instructed by Wigan Metropolitan Borough Council, Town Hall, Library Street, Wigan, WN1 1YN) appeared on behalf of the Respondent.
J U D G M E N T

LORD JUSTICE THORPE:

[1]This is an application for permission to appeal an order made by HHJ Steel, Deputy Lieutenant, on 22 November sitting in the Liverpool County Court. The application was put before Wall LJ, who listed it for oral hearing on notice with appeal to follow. He did so on the strength of a skeleton argument submitted by Mrs Munroe to support the application, and I can well understand why he did so on that limited information because, as he observed, the order made by the judge was unusual and it was difficult on the material provided to him to understand the thinking behind it. We are now in a much more advantageous position because we have skeleton arguments in response, not only from the local authority, but from the guardian ad litem. I will take the history of the relevant litigation from the helpful skeleton argument settled by Mr Lazams, who establishes by paragraph 7 that the judge had been concerned as to the use which the mother might make of court documents, and in June had given directions for the filing of skeleton arguments on the issue of disclosure of documents.[2]That issue was then determined by the judge on 5 September 2005, when a consent order emerged. Paragraph 1 of that consent order provides:
“All papers within these proceedings shall be disclosed to the solicitors for Mrs S who may discuss them and share the contents of them with Mrs S but who shall not give copies of any documents to Mrs S to take away from her solicitors’ office.”
[3]That seemed to settle the position. However, on 31 October 2005 the Family Proceedings Amendment No. 4 Rules 2005 came into effect, relaxing the restrictions contained in rule 23.1 of the Family Proceedings Rules 1991. In consequence, on 10 November counsel then appearing for the mother, not Mrs Munroe who appears before us today, raised with the court the advent of the rules and sought to re-visit the restriction on the mother. Accordingly, HHJ Steel gave further directions for further skeleton arguments to enable that issue to be reconsidered on the 22 November. Mrs Munroe settled the skeleton for the mother. It ran to some eight pages and deals with many issues, but only most briefly with the Amendment No. 4 Rules, which were, after all, the reason for the court and the parties to reconvene. All that Mrs Munroe said in her skeleton was that it was clear from the provisions of the Amendment Rules that there had been an extension of the existing rules in respect of communicating of information relating to family proceedings to third parties and it is now permissible for a party to family proceedings to discuss documents filed and served upon them. That is rather a hazardous summary of the effect of the rule, which was designed to apply limited extension in general and, in specific cases, only those covered by rule 6(3).[4]On 22 November the mother was represented by a Miss Gengle, who was a newcomer to the case, but who was apparently advancing the skeleton argument settled by Mrs Munroe. The judge was obviously not much moved by the application to vary paragraph 1 of the consent order. She seems to have understood that the foundation for the application to vary was that the mother’s attitude and health had improved a good deal since the summer and that justified a relaxation of the restraint.[5]At the outset of her judgment, the judge explained that her initial intention was to reserve and that she would certainly deliver a full, reasoned judgment if that was requested. Otherwise, she would shortly state her position. No full reasoned judgment was sought on the mother’s behalf and so the judge simply declared that whilst it might be that the mother’s position had changed and improved, she had at the moment “no tangible evidence as to that and such evidence as there is may well be before me in February”.[6]She went on to say that she saw no reason to vary the restriction imposed by paragraph 1 of the September order, but:
“If it is appropriate, I will look at that again in February if there is something concrete in the statement and reports which came before me then to indicate that there has been a shift in the mother’s approach.”
She also said in the following paragraph that if mother’s solicitors were experiencing any difficulties in taking instructions, then the judge would certainly be prepared to look at an application to disclose a particular document to the mother in paper form.[7]So that is a brief account of the proceedings up to and including the hearing on 22 November. Mrs Munroe’s skeleton argument in support of her application asserted that the judge had fallen into an error of law in deciding as she did on 22 November. I cannot begin to see any validity in that submission and, indeed, I think it was effectively withdrawn by Mrs Munroe, who restricted herself to saying that the judge had erred in the exercise of her discretion because effectively she had applied a blanket restriction on all future documents, reversing what Mrs Munroe says should be the burden of proof, so that effectively the mother had to seek release in respect of future documents on a document-by-document basis.[8]That does not seem to me in itself to be any criticism of a decision which was entirely fact and case dependent. The judge had reached the conclusion that there was a risk in permitting possession to the mother and, in my judgment, any attack upon the exercise of that discretion is negated by the following overwhelming factors. First, if the judge’s discretion was to be attacked, then it was incumbent upon counsel to ask for the fully reasoned decision which was offered. If, in the heat of the moment, counsel failed to make that request because she was not then contemplating an appeal, as soon as Mrs Munroe received instructions to prepare an application for permission to this court, she should have perceived that before she could do that with any prospect of success, she had first to return to the judge and explain that the reasoned judgment was now required because it was intended to seek permission to appeal.[9]That is, in my judgment, an end to this application. But in fairness to the judge I would add that the reasons that she gave in her brief statement before the exercise of her discretion seemed to me to be impeccable and not open to any criticism. It might be said that it was bizarre that when a hearing had been specifically set up to consider the impact of the Amendment No. 4 Rules, it is odd that they are not mentioned in the judgment at all, but then that may be explained by the very limited emphasis they had received in Mrs Munroe’s skeleton of 15 November.[10]It seems to me that this is a hopeless permission application when more thoroughly investigated and I would refuse it.

LADY JUSTICE SMITH: I agree.

Order

Application refused.