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S (A Child) [2010] EWCA Civ 786

Application by mother for permission to appeal against various orders under the Children Act 1989, including residence order and specific issue orders. Application refused.


Case No: B4/2010/0891, 0892, 0893, 0894, 0895

Neutral Citation Number: [2010] EWCA Civ 786
Lower Court No: FD00P10295
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 27th May 2010

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In the matter of S (a child)

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(DAR Transcript of
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Mr Philip Sapsford QC (instructed by Messrs Child and Child Solicitors) appeared on behalf of the Applicant.

The Respondent did not appear and was not represented.

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(As Approved by the Court)

Crown Copyright ©

Lord Justice Wilson:
1. A mother, now represented by Mr Sapsford QC, applies for permission to appeal against five orders made by judges of the High Court, Family Division, in proceedings under the Children Act 1989.

2. The proceedings concern a non-marital child, T, who is aged 13.  In the proceedings the parties are the mother, the father and T herself, acting by her guardian ad litem, Mrs Provan, who is an officer of the National Youth Advocacy Service.  During the last ten years well over one hundred orders have been made in relation to T in the Division.  There have been seven appeals to this court.  There have been issues as to residence, as to contact, as to accommodation, as to education, as to many other specific issues, as to the prohibition of the parents against taking specified steps and, under Schedule 1 to the Act, as to the financial provision which the father, who is wealthy, should make for the benefit of T.

3. There is no point in my adding to the many judicial expressions of shock and horror about the way in which the litigation has proliferated.  It has received a wholly undue proportion of the attention of the Division down the years, to the prejudice, of course, of many other needier children, in relation to whom decisions have had to be postponed because of the perceived need for urgent concentration on the issues between the parents in relation to T.  The existence of T, an innocent child in the middle of the conflict, has of course prevented the Division from closing its doors against the case.  Judges have sought to control the proliferation of the litigation to some extent but to date with little success.  As I will explain, however, it is possible that, by a very recent decision, the court may at last have achieved a degree of finality in relation to the matter.

4. There is no need for me to deliver a long, reserved, judgment by way of determination of the issues before me.  I decline to be drawn into detailed survey of the many recent issues.  I intend this oral judgment to be as short and staccato as a fair despatch of five attempted appeals (indeed, as I will explain, actually six attempted appeals) will permit.  I can approach matters in this way because I have spent no less than seven hours yesterday and today in reading a mass of material provided for my use at this afternoon's hearing; so I ought to be capable of winnowing wheat from chaff.

5. By notice B4/2010/0891, dated 16 April 2010, the mother seeks permission to appeal against an order made by King J dated 8 July 2009.  It follows that the mother also needs a massive extension of time for appealing.

6. The situation on 8 July 2009 was that T was residing with the mother in London and was, as she still is, attending a school in Chelsea.  An order had been made under s.91(14) in May 2008, much relied on and indeed much praised by Mr Sapsford in his submissions this afternoon, that neither party could make applications under the Act without leave of the court.  But at an earlier hearing in 2009 the mother had been granted leave to make applications for specific issue orders, namely that T should attend a school in Gloucestershire rather than the school in Chelsea and that the mother should therefore be permitted to reside with T in Gloucestershire rather than in London, and for variation of a settlement of property order under Schedule 1 to the Act, whereby the father had been obliged to fund T's accommodation with the mother, so as to permit such accommodation to be purchased in Gloucestershire rather than in London.  Those applications had, by 8 July, been fixed to be heard by Pauffley J on 3 August 2009.  But the mother had also been granted leave to apply for an order under Schedule 1 that the father should be ordered to pay a lump sum to her for the benefit of T of about £39,000 in order to enable the mother to pay an outstanding bill referable to rooms at the Jumeirah Carlton Hotel in Knightsbridge which she and T had occupied between November 2008 and May 2009.  The main subject of the hearing on 8 July was an attempt by the mother to secure an order under Schedule 1 which would enable her to pay for legal representation both at the hearing fixed to begin on 3 August 2009 and at the hearing, which King J herself then directed should take place on 3 September 2009, in relation to the hotel bill.    Although by her order King J gave the mother leave to make applications for orders under Schedule 1 in order to fund her representation at those two imminent hearings, her main decision on 8 July was to dismiss the mother's applications for such orders.

7. In that, as I will explain, the hearings duly began on 3 August and 3 September 2009 respectively and were completed, I am not prepared to waste the time of this court by causing it now to consider whether on 8 July the judge fell into error in not providing for an award to the mother which would enable her to fund representation at those hearings.  At the hearing on 8 July the mother was represented, albeit by counsel who was alleged on behalf of the father to have been having a relationship with the mother.  There was no attempt to bring an appeal against the order dated 8 July in time; and no adequate explanation is given to me for why the court should grant an extension of some seven months in order for the proposed appeal to be validated.  It is, with respect to him, no use for Mr Sapsford to state, compendiously, that the late filling of this and of the other notices is attributable to the mother's lack of funds with which to procure legal assistance for the bringing of the appeals.  Like more and more of the litigants in this court, the mother is perfectly capable of completing and filing the notices.  Indeed when the notices were ultimately filed, it was she who, notwithstanding the reference on them to solicitors as acting for her, actually filed them and somehow persuaded our fees office that, in that she was acting in person, the fee of £200 for the filing of each notice should be remitted.  Even more piquancy is added to the situation when I record that, both at the hearing which began on 3 August and at the hearing which began on 3 September, the mother, notwithstanding her failure to secure an award under Schedule 1, was in the event represented by counsel, indeed counsel other than the counsel who had represented her on 8 July.  I make that comment advisedly and in the teeth of a submission by Mr Sapsford that on those occasions counsel was acting for the mother only as a McKenzie friend.  Such a submission runs counter to the recitals to both orders and to the front of the transcripts of both judgments and indeed also to counsel's claim, as recorded in the transcript of the proceedings of the second hearing, that he was appearing for the mother "pro bono".

8. By notice B4/2010/0892, dated 16 April 2010, the mother seeks permission to appeal against an order made by Pauffley J on 7 August 2009, namely on the fifth day of the hearing which began on 3 August and to which I have already referred.  It follows that the mother also needs a massive extension of time for appealing.

9. There were nineteen paragraphs of the judge's order dated 7 August but perusal of Mr Sapsford's grounds of appeal and skeleton argument leads me to conclude that the mother's attempted challenge is against:

(a) the judge's refusal of the mother's application that, in addition to the contribution from Mrs Provan as her guardian ad litem, T should be permitted directly to instruct lawyers to represent her at that hearing;

(b) the judge's dismissal of the mother's application for specific issue orders that T should be moved to the school in Gloucestershire and that she and the mother should therefore be permitted to relocate to Gloucestershire; and

(c) the judge's order that, in lieu of a previous order under which residence of T was granted to the mother, her residence should be shared between the parents and indeed upon the basis that not only, as before, all school holidays should be shared equally between them but that each week of T's school terms should be spent by her alternately in the residence of the mother and in the residence of the father.

I should advert to the fact that on 7 August the judge also directed that in May 2010 she should, over three days, conduct a review of the arrangements which she had then made for T's residence and schooling.

10. The basis of the proposed appeal against the orders dated 7 August 2009 appears to be that the judge was wrong to accept the appraisal of Mrs Provan that T was not competent to instruct lawyers of her own to represent her at that hearing and that the judge fell into error in concluding that it would be in the interests of T to continue to be educated at the school in Chelsea rather than to move to the school in Gloucestershire.  But the orders dated 7 August have, as I will explain, been almost entirely overtaken by events in that the order for shared residence was, in effect if not in name, soon abandoned and because the residence of T is indeed now invested solely in the father.  No adequate explanation is given for the failure to bring a timely appeal against the orders dated 7 August notwithstanding that, as I have said, the mother was represented by counsel throughout that hearing.  I do not intend to spend further time  before refusing permission for this appeal to proceed and refusing to extend time in order to enable it to do so. 

11. By notice B4/2010/0893, dated 16 April 2010, the mother seeks permission to appeal against an order made by King J on 4 September 2009.  It follows that the mother also needs a massive extension of time for appealing.

12. By the order dated 4 September 2009 the judge determined the application of the mother for, in effect, reimbursement of the hotel bill, being the application which the judge had begun to hear on 3 September and to which I have already referred.  In the event the judge concluded that the mother had been entirely responsible for choosing to stay, with T, at the Carlton between November 2008 and May 2009 and that it would be wrong to order the father, by an order under Schedule 1, to reimburse her for the outstanding bill in respect thereof.  It does not seem, however, from Mr Sapsford's grounds of appeal that that particular decision is the subject of the proposed appeal against that order.  Other orders were made by King J on 4 September in relation to an application by the father for suspension of the settlement of property order for the provision by him of funds for the mother's accommodation with T in London, pending clarification, at the review in May 2010, of future arrangements for T's residence.  Mr Sapsford contends that it was on 4 September that, in the light of the prohibition made against both parents under s.91(14) in May 2008, the father was granted leave to make such an application.  As it happens, I do not see, on the face of the order dated 4 September, any grant of leave to the father to make the application.  Perhaps it had been previously granted or perhaps King J was then granting it.  But her disposal of it could hardly be regarded as controversial for she provided merely that the father's application for suspension should be determined on paper by Pauffley J by 9 October 2009 and that until then the settlement of property order should indeed be suspended.  How the mother considers that this court would be prepared to consider an appeal against a provision that the father's application should be considered by another judge five weeks later and that in the interim the order should be suspended I cannot imagine.  How she considers that this court would grant the massive extension of time necessary for this proposed appeal I cannot imagine.  Both applications stand refused.

13. By notice B4/2010/0894, dated 16 April 2010, the mother seeks permission to appeal against an order made by Macur J dated 14 September 2009.  It follows that the mother also needs a massive extension of time for appealing. 

14. On 14 September 2009 Macur J was the urgent applications judge; and the order which she then made was pursuant to an urgent application made on behalf of the father, albeit on notice both to the mother, who in the event left the Royal Courts prior to the start of the hearing, and to the guardian, who appeared by counsel.  The urgency arose as a result of events on Friday 11 September when, pursuant to the order dated 7 August, T was supposed to move, for a week, into the residence of the father.  She refused to do so; and over the weekend the mother and T in effect lurked incommunicado.  The order of the judge on 14 September was that the tipstaff should collect T and to place her into the care of the father and that, by way of interim adjustment of the provisions of the order dated 7 August, T should reside with the father and not have direct contact with the mother until, on 2 October, Pauffley J, to whom all matters in relation to T's welfare (as opposed to financial issues) were reserved, could further consider the case.

15. I glean from Mr Sapsford's grounds of appeal that the basis of the proposed appeal against the order dated 14 September would be that the mother had no control over the refusal of T on 11 September to move to her residence with the father. The point of an appeal against an interim order made on 14 September 2009 I cannot imagine.  No adequate ground is vouchsafed for granting the massive extension of time.  Both applications in that regard stand refused. 

16. By notice B4/2010/0895, dated 16 April 2010, the mother seeks permission to appeal against an order made by Macur J dated 15 September 2009.  It follows that the mother also needs a massive extension of time for appealing.

17. What happened on 15 September was that, having fortunately found fresh counsel prepared to appear for her pro bono, the mother applied to Macur J, on notice to the father and to the guardian, to vary or set aside the order which she had made on the previous day.  The judge was told that, on the afternoon of 14 September, the tipstaff had duly executed the collection order and delivered T into the care of the father.  The argument put on behalf of the mother to the judge was that the refusal of T to move into the residence of the father on 11 September was but a teething problem in the implementation of the shared residence order dated 7 August and that the judge should, even prior to the hearing to be conducted by Pauffley J on 2 October, revert to its provisions.  But, accepting the recommendation in this regard of Mrs Provan, Macur J concluded that a return at that stage to the provisions of the order dated 7 August was likely to precipitate further conflict and that, notwithstanding T's apparently strong wish to reside with the mother and irrespective of whether the mother had consciously or unconsciously orchestrated it, it was necessary that, for the next 17 days, she should reside only with the father and, indeed, should attend school from only one home environment.

18. The point of an appeal to this court against a judge's refusal to adjust her interim determination of the previous day escapes me.  No adequate reason is vouchsafed for the massive delay in the attempt to appeal.  I refuse both the permission and the extension.

19. So five proposed appeals; and five refusals, both of permission and of extension.  But the matter does not end there.

20. Yesterday Mr Sapsford caused me to receive a document entitled "Consolidated Grounds of Appeal", by which he sought to add to the existing grounds and applications which I should today consider.  Through him the mother now seeks permission to appeal much more recent orders, namely those made by Pauffley J on 14 May 2010, i.e. less than a fortnight ago. 

21. The orders dated 14 May represented the culmination of the review hearing which had in fact begun on 12 May and for which, as I have indicated, Pauffley J had provided in her order dated 7 August 2009. 

22. Having fortunately had so much time yesterday and today to invest in preparation for today's hearing and having been provided by the mother's solicitors with so much material relating to events after the date of the latest order under formal challenge, namely 15 September 2009, including, in particular, the handed-down judgment of Pauffley J dated 14 May 2010, I feel it appropriate to accede to Mr Sapsford's invitation and to address also the proposed appeal against the orders then made, in respect of which the mother needs permission but, of course, needs no extension of time.  Strictly I should extract from the mother an undertaking to file a sixth notice of appeal against the orders dated 14 May but, at the risk of some in-house criticism, I propose not to do so.  I hereby deem the mother today to be formally seeking to appeal against those orders.

23. For this purpose I must shortly summarise events between 15 September 2009 and 14 May 2010.  Hard though it is to credit, there had in the interim been several further hearings and at least three fairly substantial judgments, namely by Pauffley J on 6 November, by King J on 20 November and by Pauffley J on 21 December 2009, of which transcripts exist but against which no attempted appeal is brought.  The upshot is as follows (and, insofar as I refer to factual matters, they represent findings against which no challenge appears to be brought to this court):

(a) on 16 September 2009 four police cars attended the father's home following what was later found to be an unfounded complaint by the mother that he had assaulted T; 

(b) it was later discovered that, again on 16 September, the mother had sent an email to T by which she instructed T urgently to complain about Mrs Provan's representation of her in order that the latter might be removed from her role and in which she the mother told T that she, T, was being mentally and emotionally abused;

(c) at the hearing on 2 October 2009 Pauffley J sanctioned a gradual return to the arrangements for shared residence which she had made on 7 August;

(d) 14 and 15 October were to be days when T stated with the mother and went to school, but, claiming that T was very unwell, the mother did not cause her to go to school and, instead, she and T went shopping, to the Carlton Hotel and to the cinema;

(e) at the hearing on 3 and 6 November Pauffley J directed that, until the further hearing on 21 December, the mother's contact with T should be supervised; but, during that period, supervised contact did not take place because of a failure, apparently on the part of the mother, to sign the forms required by the contact centre;

(f) instead, at midnight on 16 November, T escaped out of her bedroom window in the father's home and took a waiting taxi to the mother's home but, in fairness, the mother accepted the firm advice of Mrs Provan on the telephone to cause T forthwith to be returned to the father's home; and

(g) between December 2009 and May 2010 the mother had contact with T under supervision at the centre.

24. When on Wednesday 12 May 2010 the substantive review began before Pauffley J, the father and the guardian were represented, as usual, by counsel but the mother appeared in person.  She asked for an adjournment in order that she could be represented.  The judge refused her application but adjourned early, until the following day, in order that the mother might have a further opportunity either to secure assistance or to acquaint herself with material which had been filed, in particular, I believe, by the guardian at a very late stage.  On Thursday 13 May the hearing resumed; the mother again appeared without representation and renewed her application for an adjournment. Following its renewed refusal she left court notwithstanding the strong suggestion of the judge that it would be preferable for her to remain.  Thus the hearing continued and the oral evidence began.  It was given by the father, by Dr McKinnon, a consultant psychiatrist who had been instructed by the guardian, with the approval of the court, to provide an assessment of the mother but by whom, unfortunately, the mother had refused to be interviewed, and by the guardian.  The judge's orders dated 14 May were that T should reside with the father; that the mother should continue to have supervised contact at  the centre for two hours each week; that any enlargement of her contact should be in the discretion of the father; that the mother should be subject to various prohibitions against making other approaches to T, albeit that the judge appears to have chosen not to attach a penal notice to them; and that, while the prohibition under s.91(14) against the father should be discharged, the mother should be subject to a renewed prohibition thereunder against making any application under the Act referable to T without leave until her 18th birthday, i.e. until the expiry of the court's entire jurisdiction over her under the Act.  The justification for that raft of orders, which I have collected from the judgment handed down by the judge on 14 May, was that, by and large, T had blossomed, including at school, since she had begun fully to reside with the father; that there were signs, including in a recorded telephone conversation with the mother on 13 January 2010, that T was beginning to feel empowered to exert a degree of independence from the mother; and that (such was at any rate the judge's assessment) the quality of parenting provided to T by the father, with the support of his present wife, was, in light of the extremely difficult circumstances, high.  Although the judge considered that, of course, it would be in principle preferable for the mother's contact with T to become unsupervised, she saw as yet no sign that the mother would be able to participate more appropriately during periods of unsupervised contact than had been the case when, during the previous summer, residence had been intended to be shared on an equal basis. 

25. Conscious of the weight of the evidence which lay behind the judge's ultimate determinations and indeed, by reason of the mother's failure to comply with a direction to put in evidence of her own, of the lack of evidence to counter it, Mr Sapsford casts his ground of proposed appeal against the judge's orders dated 14 May 2010 on the basis that she had wrongly exercised her discretion both on 12 and on 13 May when refusing the mother an adjournment in order to obtain legal representation.  Mr Sapsford reminds me of the mother's right to a fair hearing under Article 6 of the ECHR and, while conceding that the article does not require that in the determination of their civil rights (as opposed to the provision, albeit even then in qualified terms, made for those charged with a criminal offence in Article 6(3)(c)) persons should be provided, free of charge, with legal representation, he complains that there was a wholesale inequality of arms at the hearing in May: for the father was as usual represented by leading counsel; the child T was represented by counsel and took instructions from a guardian whose line was hostile to the mother and (adds Mr Sapsford) not in accordance with T's own wishes; but the mother had no one to represent her and (so he says) could not properly represent herself.

26. In my view the mother would have no real prospect of persuading this court that the judge exceeded the bounds of her discretion by refusing to adjourn the substantive review hearing.  As long ago as 7 August 2009 she had directed that it should take place in May 2010.  In the past the mother had on occasions represented herself competently.  The interests of T cried out for attempted finality.  Had the mother wanted constructively to engage in the proper assembly of the case for determination by the judge in May, she would in my view have offered herself for interview by Dr McKinnon. I reject Mr Sapsford's suggestion that, lacking wise advice from lawyers, the mother should not be criticised  for refusing to present herself for interview with him. 

27. But there is another feature.  Look at the five attempted appeals brought by the notices dated 16 April 2010.  There the mother was adopting a scattergun approach to five orders made several months previously, the significance of which had clearly passed.  The five notices were assembled by solicitors on behalf of the mother.  In addition there was the estimable Mr Sapsford signing, on 12 April, elaborate grounds of appeal and preliminary skeleton submissions.  Now, less than a fortnight after the hearing before Pauffley J, we have today's hearing, in preparation for which Mr Sapsford has done extensive further work and has amended his grounds of appeal and at which he has appeared on behalf of the mother.  Irrespective of whether he was available to represent the mother before Pauffley J, it seems clear to me that, if the mother had, as she has, been able to secure representation of the highest calibre in and about the five misconceived appeals, she could surely, had she wished, in addition -- or at any rate instead -- have secured representation at the hearing before the judge. Did it, however, appear to the mother that, instead of attempting on the merits to oppose a solution under which T resided fully with the father and had only limited, and at present supervised, contact with her, she might stand more of a chance of defeating such orders in this court by applying for the adjournment -- not beforehand but at the start of the hearing – and, upon refusal, leaving the court of trial?

28. At all events I refuse permission for her to appeal against the orders dated 14 May 2010.

Order:  Applications refused