Re H (Minors) (Access: Appeals)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,LORD JUSTICE STAUGHTON,SIR JOHN MEGAW |
| Judgment Date | 27 February 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0227-2 |
| Docket Number | 89/0188 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 February 1989 |
[1989] EWCA Civ J0227-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(Mr. R. I. Gray, Q.C., sitting as a deputy Judge of the High Court)
Royal Courts of Justice
Lord Justice Purchas
Lord Justice Staughton
and
Sir John Megaw
89/0188
MISS S. FLOCKTON (instructed by Messrs Williams & Co.) appeared on behalf of the Appellant/Plaintiff.
MR. B. JUBB (instructed by Messrs Richard White & Michael Sherwin) appeared on behalf of the Respondent/First Defendant.
MR. N. WALL, Q.C. appeared for the Official Solicitor.
This is an appeal by the mother from an order of Mr. R. I. Gray, Q.C., sitting as a Deputy High Court Judge in the Family Division on 28th October 1988. The learned judge was reviewing the progress of access which he had ordered earlier in May of that year. By that order the judge dismissed an application by the mother to terminate all access to two children, the result of the union between her and the father. The children to whom I shall refer by their christian names are Andrew, who was born on 6th April 1983, and Lorna who was born on 24th April 1984.
The occasion of the order was the return of the application to the judge on review of the earlier order. Upon that occasion the mother took the opportunity to urge upon the judge that he should terminate all access, but the judge declined to take that course and made an order that limited access should be continued to the same degree as before for another six months before a further review, which I understand is due to take place in April this year.
There is a considerable history behind this appeal and the applications to which it refers, including numerous applications to the court concerning the children, access to the children and the conduct of the father towards the mother. The children are the issue of an informal relationship—the parents were never married—and that relationship has now ceased. It is not necessary for the purposes of this appeal to consider the history in any detail. I shall return shortly to it, as described in both the judgment on 23rd May, which was delivered by Mr. Gray, and in the judgment under review.
However, before turning to the merits of the appeal it is necessary to refer to a position which arose at the outset of the hearing of this appeal. Mr. Jubb, on behalf of the respondent, took the point that the appellant had neither leave to appeal from the judge, nor leave from this court, and that under the provisions of section 18(1) of the Supreme Court Act 1981 such leave was necessary. If leave is necessary for this appeal and has not been obtained, the notice of appeal is of course invalid and there is no jurisdiction in this court to entertain the appeal. It was, however, common ground and conceded by Mr. Jubb that should an application for leave be made to this court and the court minded to grant it, there was jurisdiction in the court to rectify the matter on the court receiving an undertaking from the appellant's counsel, Miss Flockton, to file with the court properly a notice of appeal.
The point upon which Miss Flockton relied for the absence of leave to appeal is an interpretation she sought to put upon section 18(l)(h)(i). For convenience I will read that part of the section:
"(h) without the leave of the court or tribunal in question or of the Court of Appeal, from any interlocutory order or interlocutory judgment made or given by the High Court or any other court or tribunal except, in the following cases;
(i) where the liberty of the subject or the custody, education or welfare of a minor is concerned."
Miss Flockton submitted that access was part and parcel of the welfare of the minor. However, subsection (ii) provides:
"where an applicant for access to a minor is refused all access to the minor."
The fallacy which underlies the submission made by Miss Flockton is clear when the two subsections are compared, for if Miss Flockton's submission that welfare included access is correct, there would be no reason to have a special sub-section dealing with the case where the applicant for leave to appeal is deprived of access to a minor to the degree of being refused all access. In this case the appellant cannot describe herself as an applicant for access who has been refused all access to the minor and therefore if she cannot describe herself in that way, unless she can bring herself within section 18(l)(h)(i) she requires leave.
The only complicating feature to what otherwise would appear to be a very simple exercise of construction of the provisions of that part of the 1981 Act arises from the provisions made under the County Courts Act, now the County Courts Act 1984, but this order was made under the earlier Act, that is, the County Courts Act 1959. That provides in the County Court Appeal's Order made under section 108 of the 1959 Act but continued under section 77 of the County Courts Act of 1984, under the cross-heading "Leave to Appeal": "There shall be no right of appeal..…without the leave either of the judge of the county court or of the Court of Appeal in the following classes of proceedings:" There are then set out a number of specific causes and then "Savings for Injunctions and for Children" in Article 3. This provides:
"3. Article 2 shall not apply where the determination sought to be appealed from:
(a) includes or preserves an injunction, or
(b) relates to the custody of or access to a child."
Read strictly, in the case of an appeal from the county court it would appear that the provisions of that article have the effect of providing that no leave to appeal is required when it relates to the access of a child without any qualification as to the amount of the access involved. There is a further difficulty, not of great significance but our attention was directed to it by Mr. Wall, who appears for the Official Solicitor, and that is in the Matrimonial Causes Act 1973, where the definition of custody includes access. However, as Mr. Wall submitted, there is little difficulty arising from that, because that definition is clearly part and parcel of the 1973 Act and is not to be relied upon as in any way enlarging or enhancing the general meaning of the word "custody", or any legal results therefrom in other statutes or orders so as to embrace access where different provisions relating to access appear. Thus it is clear that with the Supreme Court Act 1981, so far as appeals from the High Court are concerned, there is no difficulty. The only case in which leave is not required to appeal is when the applicant is someone who has been refused all access to a minor and in no other case. If it was necessary for this court to decide—and it is not, since it is an appeal from the High Court—it would, in my judgment, be required to hold that the provisions of the Supreme Court Act 1981, being passed subsequently to the order under the County Courts Act 1959 (although continued in the 1984 Act), must prevail. It is however a matter to which the attention of those responsible for considering the statutory rules and orders, or rules of the Supreme Court might be drawn in order to avoid any possibility of confusion in the future where appeals from the county court relating to access and not involving the total withdrawal of access, which may as the present County Court Appeals Order stands appear to qualify as an exception to the necessity to obtain leave in access cases.
In the event we considered an application for leave to appeal. If I may say so, very properly, this being a children's case, although not accepting the submission Mr. Jubb did not argue strenuously against it and readily accepted that his position was in no way prejudiced by the late application for leave to appeal. Without any indication as to the view of the merits in this particular regard, and bearing in mind that it was a children's case, the court decided to grant leave. The appeal therefore proceeded upon the void notice of appeal against the undertaking to file a proper notice of appeal given by Miss Flockton.
I now turn to the brief history of this case. On the occasion in May 1988 the judge rehearsed in considerable detail the long and litigious history. The parties cohabited for a comparatively short time. Their cohabitation started in April 1982 and ended in a context of violence committed upon the mother by the father on 24 th November 1984 when she left home with the children. The father promptly started proceedings under the Guardianship of Minors Act, claiming the custody of Andrew and access to Lorna. There was in the wake of that a short-lived reconciliation, but the matter finally came before the Lambeth County Court on 15th March 1985, when His Honour Judge Tibber granted the custody of Lorna to the mother, adjourned the application made by the father for the custody of Andrew, ordered the father to vacate the home at 34a Poplar Road, London S.E.24 and granted injunctions against him prohibiting him from molesting the mother. Interim care and control of Andrew was given to the mother pending the adjourned hearing of the custody application. Access was granted to the father for four days a week for some three hours. The father obeyed the order and left the home, and the mother and the children have lived there since.
That was not the end of the difficulties. There were many complaints made by the mother relating to the access being enjoyed by the father. It was said that the father returned the children late on access. There were incidents whenever the parties met on the doorstep. And only a matter of months after the...
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