B (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall |
| Judgment Date | 11 June 2009 |
| Neutral Citation | [2009] EWCA Civ 545 |
| Date | 11 June 2009 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2009/0863 |
[2009] EWCA Civ 545
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
His Honour Judge Richards sitting as a judge of the High Court in Norwich on 3 April 2009
Before: Lord Justice Wall
Lord Justice Elias
Case No: B4/2009/0863
Peter Horrocks (instructed by Powleys —Solicitors) for the Appellant
Cherie Parnell (instructed by Allan Rutherford Ltd —Solicitors) for the 1st Respondent
GLB appeared in person and represented herself
Hearing date: 21st May 2009
Lord Justice Wall:
Introduction
This is the judgment of the court, to which both of its members have contributed.
We heard this case on 21 May, pursuant to an order made by Wilson LJ on 24 April 2009 that it was to be listed before a three judge court as an application for permission to appeal with the appeal to follow if permission was granted. At the outset of the argument we invited Mr Peter Horrocks, for the applicant, to advance his arguments as though for a substantive appeal, and at its conclusion, we announced our decision, but reserved our reasons. We granted permission to appeal, but dismissed the substantive appeal. We made various ancillary orders designed to give effect to our decision, and refused a prospective application by Mr. Horrocks for permission to appeal to the House of Lords.
In our judgment, this case raises a number of points of interest for the profession relating: (1) to second appeals in children's cases; and (2) to the application of the welfare test under section 1 of the Children Act 1989 (the 1989 Act) to a case involving a residence dispute between the father and the maternal grandmother of a child.
We do not think that it is in the interests of the child concerned to be identified. We accordingly impose reporting restrictions. This judgment is being written anonymously, and nothing must be published which in any way identifies the child. In the interests of the child's anonymity, we propose to identify him only by an initial, and the other relevant parties by reference to their relationship with him.
The appeal
The maternal grandmother of H, a boy born on 12 December 2003, appeals against an order made by His Honour Judge Richards sitting as a judge of the High Court in Norwich on 3 April 2009. The judge was hearing an appeal from the family proceedings court, which had refused the father's application for residence and had made an order that H continue to reside with his maternal grandmother. The justices made contact orders in favour of both of H's parents. On appeal, the judge reversed that decision, and directed that H should reside with his father with effect from 25 April 2009. The judge made orders for staying contact with the father in the interim, and refused both a stay and permission to the grandmother to appeal. The judge's order was subsequently stayed by Wilson LJ pending the determination of the grandmother's application for permission to appeal.
H's father, mother and grandmother were all represented before the justices. Before the judge and in this court, only the father and the grandmother were legally represented. The mother, who appeared in person before us, was not in a position to care for H, and supported the father's application.
Section 55(1) of the Access to Justice Act 1999 (the 1999 Act)
It will be immediately apparent that this is a second appeal (albeit a first appeal by the grandmother, who succeeded before the justices) to which the provisions of section 55(1) of the 1999 Act and Rule 52.13 of the Civil Procedure Rules (CPR) apply.
Section 55(1) of the 1999 Act reads as follows: —
(1) Where an appeal is made to a county court or the High Court in relation to any matter, and on hearing the appeal the court makes a decision in relation to that matter, no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that—
(a) the appeal would raise an important point of principle or practice, or
(b) there is some other compelling reason for the Court of Appeal to hear it.
These provisions are replicated in CPR 52.13, which we do not need to reproduce. They are to be contrasted with the criteria for first appeals, which are contained in CPR 52.3(6). This reads: -
Permission to appeal may only be given where –
(a) the court considers that the appeal would have a real prospect of success; or
(b) there is some other compelling reason why the appeal should be heard.
So how does section 55(1) fall to be applied when a circuit judge (in this instance sitting as a judge of the High Court) allows an appeal from justices under section 94 of the 1989 Act? Plainly, the application for permission to appeal, and the appeal itself (the latter being governed by G v G [1985]1 WLR, 647) is from the circuit judge. It is his decision which we are required to review. If his decision is arguably plainly wrong, is that a compelling reason to hear the appeal in the absence of any important point of principle or practice, as Mr. Horrocks urges?
Both principle and authority demonstrate that it is not. In Tanfern Ltd v Cameron MacDonald (Practice Note) [2000] 1 WLR 1311 paras 41–46 the Court of Appeal emphasised when giving guidance about second appeals in civil cases in private law matters (but not including family cases) that even if this court takes the view that a second appeal is properly arguable or has a real prospect of success, that does not provide a justification for hearing it. The purpose behind section 55(1) of the 1999 Act and CPR 52.13 is that, in general, there should only be one appeal from any given decision. Were either arguability or even a strong prospect of success to constitute a compelling reason for a second appeal, there would be no difference between first and second appeals, and the Statute would be deprived of its meaning and effect. In our judgment that must equally be so in family appeals. The strength of the case does not of itself provide a compelling reason to hear an appeal.
When listing the matter before us, Wilson LJ commented: “second appeals may have a different colour when the proposed appellant in this court prevailed in the court of trial”. We understand the thinking behind this comment: on the face of it, there is a stronger case for a second appeal where the earlier rulings are in conflict than where they are in harmony. However, the Statute itself draws no such distinction.
In the event, however, we take the view that this case does raise an important point of principle, namely the inter-relationship between the roles of a parent and a grandparent in the welfare equation identified by section 1 of the 1989 Act. For that reason, we granted permission to appeal.
It may also be the case – we did not hear argument on the point and have reached no concluded view – that the effect of a decision relating to the welfare or future upbringing of a child may itself constitute a compelling reason for hearing a second appeal. The importance of such decisions for the children and adults concerned cannot be over-emphasised. Moreover, the fact that two courts have reached different conclusions may (a word we emphasise) reinforce the justification for hearing the appeal.
The essential facts
Against this background, we turn to examine the facts of the particular case, which we can extract from the agreed summary of the background placed before the judge. H has lived with his maternal grandmother throughout his short life. Initially, his mother lived with them. In June 2006, however, H's mother obtained her own accommodation, and on 9 November 2006, when H was nearly 11 months old, the grandmother obtained a residence order in the local family proceedings court in relation to him.
The order which gave the grandmother residence of H also gave the father parental responsibility and contact. The father enjoyed regular contact with H up until July 2007, when he was sentenced to a term of 18 months imprisonment for a racially aggravated assault. It seems that the grandmother brought H to see his father in prison on a number of occasions. The father was released in March 2008 and resumed contact with H, seeing him each weekend from 5.00pm on Friday to 5.00pm on Saturday.
On 20 August 2007, the mother issued an application to the justices seeking residence of H or contact with him. She raised a number of issues about the grandmother's care of H, and a CAFCASS report was ordered. However, she obtained permission to withdraw the application prior to the preparation of the report.
The mother issued a fresh application before the justices on 28 May 2008, and on 11 June 2008 the family proceedings court made an interim contact order in the mother's favour whereby the mother saw H each Wednesday evening between 3.45pm and 7.00pm and had staying contact with him each weekend from 5.00pm on Saturday until 5.00pm on Sunday. This, we understand, is the arrangement which persists today. It is thus apparent that whilst H lives with his grandmother during the week, his weekend are, effectively, divided between his parents.
As a result of concerns raised both by the mother and the father, a report under section 7 of the 1989 Act was ordered for the final hearing before the justices, which took place on 6 March 2009. At that hearing, the mother did not pursue her application for residence, but supported the application made by the father, who by that date had married and, on his case, settled down.
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