B (A Child) [2009] EWCA Civ 435

Case No B4/2009/0169

[2009] EWCA Civ 435

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 2LL

Date Tuesday, 31 st March 2009

Before

LORD JUSTICE THORPE

LORD JUSTICE WALL

MR JUSTICE HOLMAN

IN THE MATTER OF B (A CHILD)

(DAR Transcript of

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THE APPELLANT APPEARED IN PERSON

THE FIRST RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED

Ms S Rogers (instructed by Graysons Solicitors) appeared on behalf of the Second Respondent.

Judgment

[1]This is Mr B’s appeal from an order of HHJ Orrell of 10 December 2008. The judge himself gave permission for the appeal and the appellant’s notice is dated 26 January 2009.

[2]This is a very sad case, in which there have been proceedings in relation to Mr B’s contact with his daughter, L, from her age of, approximately, four, through to her present age of 14. So there is a decade of litigation, and sadly the path has been a path of increasing difficulty and barrenness, so that from early days when Mr B enjoyed normal contact relationship with his daughter he has had to resign himself to a situation in which contact has dried up altogether and that, despite the investment of considerable resources within the county court, Mrs Jones came into the case from the beginning as CAFCASS officer and then, following an order made in 2007 by HHJ Pugsley, she became L’s section 9.5 guardian. Unfortunately, relations between Mrs Jones and Mr B have deteriorated as the frequency of his contact has diminished as his relationship with L has withered. But, although Mrs Jones has reached retirement age, she still works part-time and still provides guardian support for L, and it is perfectly evident to any outsider that there is a real value in that continuation provided that the relationship between child and guardian is one of mutual respect and confidence.

[3]The case was before HHJ Orrell in May 2008 when he had to resolve difficulties over the funding of an expert, Mr Cheeseman, who had been brought into the case by earlier directions order; and, in reaching his decision, the judge also imposed on Mr B a section 91(14) order and a prohibited steps order which have still got some weeks to run because he gave them twelve months’ duration. That order Mr B brought to this court and his application was heard by my Lord, Wall LJ on 14 August 2008. My Lord refused permission to appeal the prohibited steps order for reasons that appear from paragraphs 8 and 9 of the transcribed judgment, and in paragraph 14 my Lord explained why he was refusing the permission application generally. But my Lord did express sympathy, which I am sure we all share, for Mr B’s position as a father who has seen contact to his daughter diminish and had to come to terms with the withering of the relationship.

[4]My Lord drew attention to the possible aid that could be given were NYAS involved. So when the case returned to HHJ Orrell in the Derby County Court on 10 October, he made an order which had two principle ingredients. First, he invited NYAS to intervene in the proceedings for the purpose of preparing a report of what assistance could be offered to re-establish face-to-face contact, and specifically they were asked to give consideration as to whether they should act as L’s guardian in substitution for Mrs Jones. A second part of the order granted Mr B permission to try to set aside the prohibited steps order prior to its termination on 21 May 2009, and the judge said that such an application should be listed before District Judge Dowse for the district judge to hear CD-ROM evidence prepared by Mr B. Mr B felt that he had recorded conversations between himself and L which would give the lie to any case for a prohibited steps order. Now, what is the history of subsequent development? NYAS, having received the judge’s invitation, responded on 4 November with the essential message that, unless they were formally appointed guardian under rule 9(1)(5), they had no access to public funding and as a charity could simply not undertake work. They made the subsidiary point that since L had been preliminary assessed by Mr Cheeseman as a child with above chronological age maturity, it would be NYAS’ ordinary practice simply to put her point of view to the court through the mouth of an advocate without, as it were, allocating a case worker to look at welfare issues that might run counter to the case that the child wished presented. So that material was before the court on 10 December. The judge was minded to go a mile further and to go back to NYAS again, sending them all the bundles, including the father’s objections to Mrs Jones, to Mr Cheeseman and to the report of the head teacher, all of whom had expressed a view as to L’s maturity.

[5]The judge also envisaged the parties filing a short statement to help NYAS get to the core issues. The judge continued:

“I appreciate that this would lead to an adjournment, which is something which the father is unhappy about. The mother and guardian did not express any view as to that suggestion, although I had the impression that they would not actively oppose it, albeit they are not enthusiastic.”

The judge then recorded that from NYAS he might at least obtain a view as to whether L was competent to give direct instructions to an advocate. The judge then recorded that Mr B resisted the judge’s suggestion and the adjournment and sought an order for NYAS to be appointed guardian. The judge went on to reject that application and it seems that, as a consequence of his rejection, not only did Mr B’s application fall but so too did the judge’s suggestion that NYAS be again involved.

[6]Now let me come to the resolution of the issues before this court today. The appellant’s notice, by section 2, makes plain that what is (inaudible) is the judge’s order of 10 December. However, in his grounds of appeal at page 9 of the bundle Mr B does touch upon the judge’s order of 10 October submitting that the judge erred in directing that the application be listed before “a district judge who would not have the authority to overturn this decision”. I recognise that Mr B, as a litigant in person, may not understand the niceties, but obviously, in fairness to the judge, if we were to review his discretionary decision of 10 October to list Mr B’s application before a district judge we would need to see what surviving evidence there was of his reasoning. We have no transcript or note of what may have been said by the judge on 10 October.

[7]Plainly, a district judge would not lack authority to terminate the prohibition prematurely and, as a matter of subsequent fact, the application did come before a district judge on 18 February 2009 and the district judge, understandably, simply adjourned the application over to await this court’s ruling on paragraph 1 of the grounds. So I think that paragraph, if we are, as it were, indulgently to treat it as a properly constituted attack, can be got out of the way by saying(a) it was within the judge’s discretion to do what he did;

(b) we have no evidence as to his reasoning for doing what he did;

(d) in any event, the prohibition comes to its natural end quite shortly. So it only remains to consider Mr B’s attack on the judge’s discretionary refusal to replace Mrs Jones as L’s guardian with a NYAS direction. The judge does not explain himself at any length in this brief note of his judgment. He simply says that the application is without merit. I conclude that it was plainly within the judge’s discretion to order as he did. It is manifest that the judge was bending over backwards to look for any agency that could help break the log jam. He had appealed to NYAS by his order of 10 October and, despite their refusal by letter of 4 November, he was again, on 10 December, anxious to knock on that door a second time.

[8]That never happened because of Mr B’s objection, but that the judge concluded that Mrs Jones should continue is hardly surprising given her long involvement in the case and given that her replacement would involve a start from scratch for the new guardian, and a start from scratch would have put a degree of obvious pressure on L. We have since seen a statement from the mother, which eloquently explains that L is sick to death of this litigation; that she has built up a good relationship with Mrs Jones and that she would be disheartened if she had to start explaining her position all over again with some new guardian. The response to Mr B’s appeal has been very well articulated by Ms Rogers, who is instructed on behalf of the guardian, and I have found her submissions contained in her case synopsis and in her skeleton argument very persuasive. Plainly, the decision reached by the judge on 10 December was a discretionary decision. It was the decision taken by a judge who is plainly sympathetic to the tragedy of the case and it was plainly a decision well within the discretionary ambit. So for all those reasons I would dismiss this appeal.

[9]I agree that the appeal should be dismissed. I add a short judgment of my own because, during the course of his argument to us this morning, it seemed to me that Mr B made a number of attacks on the integrity of the judge. I would not want it to be thought that those attacks had gone un-noted. In the judgment under appeal the judge records that, on 4 September 2008, he had refused Mr B’s application to instruct NYAS and incorporated his reasons into an order. Those reasons were(1) that L wanted the litigation to come to an end;

(2) that the guardian was sceptical that any agency now instructed would achieve anything more that has already been achieved in the terms of progressing contact; and

(3) that it was undesirable for L to have to explain her wishes and feelings to a third expert within the course of proceedings. Despite that decision on 4 September, the judge was nonetheless minded, I think, having read my judgment refusing permission to appeal given on 14 August 2008, to make a further approach to NYAS with the consequence that on 10 October 2008 he made the order inviting NYAS to intervene in the proceedings for the purpose of preparing a report following consideration on whether any assistance could be offered to L, the father or the mother, to re-establish face to face contact between L and her father.

[10]In my view, in agreement with my Lord, that order was plainly an attempt by the judge to see, despite his refusal to remove Mrs Jones, whether or not NYAS could indeed assist. What happened -- and perhaps it may be unfortunate in terms of chronology -- is that, in pursuance to the order, the guardian wrote to NYAS prior to the order actually being promulgated, with the consequence that NYAS on 4 November replied in the terms that my Lord has already indicated. The result, of course, when the matter came back before the judge as it did in December, was that NYAS was refusing to become involved. But even then, as my Lord has indicated, the judge did not take no for an answer and proposed a further course of action which Mr B, for reasons which I understand, did not want to pursue. In May 2008 the judge, hearing an application by the guardian on notice for a prohibited steps order, made a number of findings in relation to the issue of contact and in relation to the nature of the proceedings which were plainly open to him and which I had before me when I heard the application for permission to appeal in August. It therefore seems to me that, when the matter came before the judge in December, not only was he fully familiar with the case but that he had tried every avenue that was open to him to see if the intractable problem of contact could be resolved.

[11]Mr B complains to us today that he has not had a full final hearing before the judge and the judge has effectively prejudged the issues. That is not a submission I feel myself able to accept. A judge, hearing a case of this nature dealing with a fourteen-year-old young woman, is entitled to form views and to express opinion and that the judge has done. If Mr B returns to him, I am entirely satisfied that the judge will deal with the matter on its merits and hear Mr B’s application. If the application fails -- that is the application for specific contact -- it will be on its merits, not because of any lack of integrity on the part of the judge. In my judgment, the judge, having expressed himself in May as regretting the extent of the litigating and wishing it to come to an end, nonetheless has tried every avenue to ensure that contact would be restored. In my judgment, therefore, the decision not to replace the guardian with NYAS is one which was plainly open to the judge and, like my Lord, I would dismiss the appeal in relation to it.

[12]I just say this in conclusion to Mr B. We have the advantage today, of course, of a judge who sits nowadays at first instance, something which my Lord and I did for many years. Mr B, according to the chronology, is only 46. His daughter is fourteen. In two years’ time she will be 16. In four years’ time she will be 18. He has the remainder of his life to establish a relationship with her and that is what matters -- that he should, in due course, establish his relationship with her, and I am confident that, in due course, if he is able to restrain himself, she will in due course come to him.

[13]Parents who come to this court frequently think that what matters are the next two months or the next two weeks is of the utmost importance in the case. In my judgment that is not so. What matters in this case, in my view, is that in due course a relationship should be established between Mr B and his daughter and, speaking for myself, I am confident that in due course this will happen and that is the important feature. But however, for the reasons my Lord has given, I too would dismiss this appeal.

[14]Although these words will seem hollow to Mr B, I am profoundly sympathetic to him and the situation in which he finds himself. Ultimately, all he seeks is to re-establish contact between himself and his daughter, and nothing could be more understandable than that. However, this appeal is on a very narrow, albeit important, focus, namely whether or not the judge wrongly exercised his discretion not to appoint NYAS in place of the existing guardian. For all the reasons given by each of my Lords, with which I entirely agree, it seems to me that we cannot possibly interfere with that discretionary decision by the judge. So I, too, would dismiss this appeal.

Order

Appeal dismissed