P (A Child)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WALL |
| Judgment Date | 18 April 2005 |
| Neutral Citation | [2005] EWCA Civ 576 |
| Docket Number | B4/04/2265 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 April 2005 |
[2005] EWCA Civ 576
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(Her Honour Judge Pearlman)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Wall
B4/04/2265
THE APPLICANT appeared in Person.
This is an application by Mr P for permission to appeal against two orders made in the context of proceedings under the Children Act 1989 between himself and Miss B, the mother of his young son S, who was born on 8 February 2002, and is aged 3. The two orders in question are, firstly, that made by Her Honour Judge Pearlman, sitting as a deputy judge of the Family Division in the High Court on 21st October 2004; and secondly, that made by Bracewell J on 28th February 2005 at the conclusion of a substantive hearing. Her Honour Judge Pearlman's order was, in essence, an order for directions and it is, I think, reasonably clear that that order, which gave directions with which Mr P did not agree, has been overtaken by the order made by Bracewell J in February. Nonetheless he maintains his application in relation to it on the ground that, although an appeal may in one sense be academic, nonetheless, the circumstances in which Judge Pearlman's order came to be made—and the background to it—demonstrate a highly unsatisfactory state of affairs in the procedural sense; and that it might be helpful for this court, if it were to give permission to appeal, to address those issues in the context of Judge Pearlman's order. I think, however, that Mr P recognizes that the main thrust of his application this afternoon is against the order made by Bracewell J.
Permission to appeal was initially refused by Ward LJ in relation to the order of Judge Pearlman, he having the papers at a time when in effect the hearing before Bracewell J was ongoing. He took the view that since it was a directions order it was inappropriate to appeal it in those circumstances. However, I have allowed Mr P to develop the argument in relation to Judge Pearlman's order for the reasons Mr P has given.
The case is a highly sensitive one because Mr P, who is now in his early 40s, is Hindu, and S's mother, Miss B, is Muslim. She is also a substantial number of years younger than he. They met whilst Mr P was Miss B's employer. S was born on 8th February 2002. During the period leading up to his birth Miss B, who I think at that stage had not revealed her relationship with Mr P to her family, entered into an arranged marriage with another man in Bangladesh in April 2000. That man, Mr H, joined Miss B in the United Kingdom in 2001, and when S was born Miss B was unclear as to his paternity. Subsequent DNA tests which were taken revealed Mr P to be S's father. Following S's birth Miss B left Mr H and began to live with Mr P but their relationship unfortunately did not endure, and they separated when S was something in the order of four months. Since that time S has remained with his mother, and one of the critical issues in the case has been the question of Mr P's contact with him.
Unsurprisingly, the revelation to her family that Miss B had had a relationship outside her marriage, and indeed with a man of a different faith, was a considerable shock. A critical issue in the case has always been the sensitivity and difficulty of coping with S's dual heritage. That surfaced in a number of ways, one of which was an issue as to whether or not he should be circumcised. Another relates to his name. Clearly, a strong undercurrent throughout the case has been the resolution of the religious and social tensions which would be required depending on the household in which he was brought up, the religion he followed and the relationship between his parents.
Mr P instituted proceedings fairly shortly after the separation because he was anxious that Miss B might seek to remove S out of the jurisdiction. He took proceedings for a prohibited steps order. Since the summer of 2002 there has been an ongoing series of applications and hearings in relation to S. I do not propose in this judgment to go through the chronology. Suffice it to say that there appears to have been very little progress, despite the number of hearings and despite a disquieting lack of judicial continuity, about which Mr P legitimately complains, until the matter came been Wood J in 2004. He sought to set down a final hearing for February 2005 and gave a number of directions, one of which was that a child psychiatrist should be instructed to advise the court on the relationship between the parties and the future treatment of S.
Most unfortunately, there was no agreement about the identity of the psychiatrist, and the matter had to come back to court for further discussion and argument. It is also most unfortunate that in the Family Division there is a shortage of suitably qualified experts, particularly those who can deal with issues as sensitive as those in the instant case. Sometimes the court is unable to find, and the parties to instruct, the person whom they think most suitable. In the event, by the time the matter came before Judge Pearlman two experts were being proposed, neither of whom met with Mr P's approval. They were a chartered consultant clinical psychologist called Dr. Nicholas Banks, and Mr Roger Ballard, a consultant anthropologist. Despite objection from Mr P, Her Honour Judge Pearlman directed that both should be instructed and she timetabled their reports. She also gave other directions designed to ensure that the matter would be ready for hearing in February 2005. Dr. Banks is black and regularly advises the court on issues involving Afro-Carribean questions. Plainly, he felt able to give the court advice in relation to the psychological profiles of both parents. As it happened, Mr P did not co-operate with Dr. Banks. Mr P was not interviewed by him and therefore Dr. Banks' report is limited to an assessment of Miss B. Mr Ballard filed what is essentially an academic report, in the sense that he set out the relevant background and gave his learning in relation to it.
That is the first order which Mr P seeks to appeal. He takes the view that the order was ill-judged; that it was effectively designed to try and ensure that a hearing took place, and that it put timetabling before the principles of justice and before S's welfare. He says that it was not made on the basis of full discussion and argument. He invites me to give permission to appeal in relation to it in these terms:
"Whilst the court cannot provide a complete remedy, the order having been met, a judgment from this court could establish a very useful precedent for all future family proceedings and would direct the lower court in future proceedings for this case, which are ongoing."
Whilst I fully understand that argument, and while I share Mr P's anxiety about the lack of continuity prior to Judge Pearlman and by the lack of progress made in the case up until that point, I do not think that any further analysis from this court would be of particular assistance, particularly in the context of the way in which I have to regard this; namely as to whether or not Mr P has an arguable case for overturning the order made by Judge Pearlman. Plainly, as he acknowledges, the order is spent. It has been overtaken by Bracewell J's order, and in my judgment there is no purpose to be served in seeking to appeal it at this stage. Were permission to be given to appeal Bracewell J's order, the history of the case would become relevant and no doubt would form part of the comments that this court would make on the unsatisfactory nature of the proceedings, but since Bracewell J dealt with both Dr Banks and Dr Ballard, and since she reached various conclusions, hers is the order upon which I must focus. Sympathetic as I am to the dissatisfaction that he feels, I do not think that it would be a proper exercise of my judicial discretion to give Mr P permission to appeal on what would be an academic basis.
This leads to Bracewell J's hearing. I am very conscious of the fact that I do not have a transcript of her judgment. I have a note taken by Mr P's counsel, Mr Jones, who represented him on that occasion. It is a very clear note but I approach it with caution because it is not a transcript. For the purposes of this hearing, Mr P has put in a very well reasoned and very moderately expressed written argument, to which I would like to pay tribute. Criticism of him in the proceedings and in the case is that he has behaved emotionally and inappropriately and on some occasions vindictively. This document is careful, is moderate and is well reasoned.
Bracewell J dealt with the question of contact, both to Mr P and to S's grandmother. Mr P conceded that S should continue to live with his mother, and so there was no issue on residence. The judge made a detailed order for supervised contact. She built in a review due to take place on 13th and 14th October of this year which she reserved to herself if available. There is a certain irony in the fact that on the first occasion, when a judge correctly legislates for judicial continuity, Mr P has a basis on which to criticize the judge and her judgment. The judge made a specific direction for a joint instruction to a psychologist to make an assessment of Mr P, to report on his management of S during...
To continue reading
Request your trial
-
Mediation: Is It Ever Reasonable To Decline A Request To Mediate?
..."some form of alternative dispute resolution would be more suitable than litigation at the pre-action meeting." In Burchell v Bullard, [2005] EWCA Civ 576 Ward LJ "The parties cannot ignore a proper request to mediate simply because it was made before the claim was issued. With court fees e......