C (Children) [2008] EWCA Civ 1389

Case No B4/2008/1855[2008] EWCA Civ 1389
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DERBY COUNTY COURT
(HIS HONOUR JUDGE ORRELL)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 18 th November 2008
Before
LORD JUSTICE THORPELORD JUSTICE LAWRENCE COLLINS
IN THE MATTER OF C (Children)
(DAR Transcript of
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Ms H Simpson (instructed by Nottingham Family Law Associates) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT ATTEND AND WAS NOT REPRESENTED.
Judgment
[1]This is an application for permission to appeal, which Wall LJ on 3 October directed for listing on notice to the respondents with the appeal to follow if permission granted.[2]The respondents to the application are the grandparents of the four children concerned. They were represented at the hearing below but have apparently since commenced to act in person. The notice of hearing and subsequently the appeal bundle were dispatched to them by recorded delivery on 21 October, and a reminder of 3 November, but they have not appeared before the court this morning. That is perfectly understandable given that they are the carers for these four children, that they are living in South Wales and probably of limited means.[3]The reason why Wall LJ brought this case in is obvious to see and indeed appears from his reasons. He said:
“the applicant was a litigant in person, and despite his somewhat truculent behaviour, the manner in which the judge went about dealing with the application and imposing an order under section 91(14) may be open to criticism.”
[4]Going a little earlier in the history I note that on 24 August 2007 HHJ Orrell granted the residence order in respect of these four children to the grandparents and made a rather limited contact order in favour of the children and their father. At that time the local authority were involved and the judge had before him a statement from the social worker, Mrs Madin, who has since retired. The arrangement was that the contact should take place at an NCH centre in South Wales, but only three times a year, Christmas, Easter and summer holidays, supplemented by a weekly telephone call. Unfortunately the implementation of that sparse order did not go smoothly, and accordingly on 22 January 2008 Mr C, the father, issued an application as a litigant in person seeking:
“More contact. Unsupervised. No need for it. Grandparents unreasonable.”
[5]Seemingly that application was not the subject of any listing, and accordingly he issued a second application on 18 March by which he sought:
“Court order states I [am to] visit 3 times a year at present. due to see them this weekend being Easter. And theyve not sorted it out.”
[6]The second application seems to have alerted the Derby court to the need to list, and both applications, as I assume, were technically before the judge when he sat on 3 April. Mr C appeared in person and the grandparents were represented by a solicitor, Mrs Longworth, who was acting as a local agent for the South Wales solicitors. The transcript of proceedings which we have had appears on its face erroneous, because it says under the heading “Appearances”:
“For the Applicant: Mrs Longworth. For the Respondent: In person.”
That error is entirely understandable given that the transcriber probably had nothing but the transcript to go on, and the transcript reveals that as soon as the case was called Mrs Longworth was on her feet saying:
“May it please, your Honour, I represent the maternal grandparents…, and [Mr C] appears in person.”
For the Respondent: In person.”[7]She then opened her case as though she were the applicant and Mr C only got into the proceedings when he registered an objection somewhere through her opening.[8]Thereafter the whole flavour of the proceedings is of a litigant in person responding to an application, and I think it is a matter of legitimate criticism that Mr C never really had the opportunity of presenting the two applications which were listed before the court.[9]So after some exchanges between Mr C and

the judge we find at page 4 of the transcript the judge simply saying:

“[Mr C], I am dismissing your applications and, on the court’s own motion, I am making an order for two years from today under Section 94(17) [sic] (of the Children Act...”
[10]By any standards that seems to me rough justice. There was no possible foundation for making that restraint. Mr C’s litigation track record was entirely unremarkable. He needed the service of the court to address the mechanics of a contact order which was not working, and the effect of imposing a restriction on him was to place an unnecessary hurdle in his path in applying again, and to apply again was inevitable given that the two applications of January and March had been simply dismissed without any proper consideration. Worse was to follow, because when Mr C gropedto understand what had happened to him,

the judge swiftly moved to say:

“Mr C, leave court or I will send you to prison.”
[11]That brief summary of the transcript is sufficient to demonstrate that this order plainly exceeded the wide discretion vested in the judge. Authority in this court guides the trial courts in the use of this prohibition and it is plain that the judge did not have that guidance in mind when he ordered as he did.[12]So I would have no hesitation in allowing the appeal and setting aside the order impermissibly made under Section 91(14).[13]I also conclude that the judge prematurely dismissed the two applications which were before him. Where a contact order is not operating smoothly, the court that made the order has a continuing responsibility to strive to make it work, and that responsibility is all the greater where a litigant in person is before the court and plainly frustrated by the obstruction. So I would remit the two applications which the judge dismissed. I would revive them and remit to the Derby County Court to be heard by another judge, since although HHJ Orrell would be plainly available to reconsider them, it is important that Mr C should have confidence in the court. I would further say that they must be listed for at least one hour duration within the next three weeks. Mr C is naturally expecting to see his children over the Christmas holiday, he is plainly entitled to see the children over the Christmas holiday and practical mechanical difficulties must not deny him that right.[14]So that is the disposal that I would propose.[15]I entirely agree

Order

Application granted; appeal allowed