Re Kf (A Child)
| Jurisdiction | England & Wales |
| Judgment Date | 15 August 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0815-3 |
| Date | 15 August 2000 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | PRO FORMA |
[2000] EWCA Civ J0815-3
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF COUNTY COURT
(Mr Recorder Bishop QC)
Royal Courts of Justice
The Strand
London WC2
Lord Justice Thorpe
Lord Justice Mummery
PRO FORMA
MR A LEVY QC (Instructed by Sinclairs, Penarth CF64 1AA) appeared on behalf of the Applicant
MR C HOWARD QC (Instructed by Morgans) appeared on behalf of the Respondent
LORD JUSTICE THORPE: This is a renewed application on notice for permission to appeal an order made by Mr Bishop QC sitting in the Cardiff County Court on 25th July 2000. There was before the judge a fixture which had been intended for His Honour Judge Price QC, who unfortunately was tied up in the adjoining court on a personal injuries trial.
The very short facts are that the parties to the case had co-habited in the early 1990s and during their relationship a daughter, H, was born on 15th November 1994, so she is five years of age. There was violence during the relationship. Mr Levy QC, for the applicant, has quite rightly drawn attention to that violence and he has emphasised the medical corroboration, at least four assaults during the relationship. But the last assault that he emphasises took place on 10th October 1996, which is more or less the date of separation between the parties. Within a month of separation there was an agreement for contact at a contact centre. A further consent order in relation to contact was made in January 1997. Contact was again ordered in April 1997, in July 1997 and in October 1997. The pattern was consistently one of gradually extending contact between father and child. A further contact order was made in January 1998. Staying contact was introduced in April 1998 and all seemed to go well until July 1999 when contact broke down.
A subsequent investigation by the District Judge concluded that the only cause of breakdown was the father's ambition to switch the venue of staying contact from his parents' home to the home of the woman with whom he was now living.
Following the breakdown of contact in the summer of 1999, the father issued an application for not only contact but residence on 23rd July, and the mother responded with an application to terminate contact on 9th August. Those applications came before District Judge Wyn Rees at the beginning of December. In the interim there had been no contact other than three observed sessions supervised by a court welfare officer in order to guide the court at the December fixture.
On the opening day of the hearing before District Judge Wyn Rees the mother sought to introduce into evidence a report from a consultant adult psychiatrist, a Dr Jawad. That application failed. The District Judge noted that the report had only been obtained on the preceding day and that at a pre-trial review very clear directions had been given to enable the parties to file any evidence that they wished to rely on, providing it was put in by a specified date. So in the exercise of his discretion he ruled the report to be inadmissible, in that it breached all the previous directions designed to control the preparation of the case.
The hearing in front of District Judge Wyn Rees lasted three days. On 21st December he delivered a careful judgment extending to 27 typescript pages. He recorded all the history of the previous litigation with conspicuous care. He explained why he had decided, in the exercise of his discretion, to dismiss the mother's application to terminate contact, to order contact on much the same pattern as had prevailed prior to the breakdown in the summer of the previous year, to attach a penal notice to the order, to adjourn the father's application for contact to a review in April of the following year and to adjourn the father's application for a residence order generally.
The mother's response to the District Judge's ruling was to carry out her threat, delivered during her oral evidence, to disobey. Accordingly, on 11th January the father issued a committal application. The mother responded on 18th January with an application to appeal the order of the District Judge out of time. On the same day His Honour Judge Price gave her leave to appeal out of time and he ordered that that appeal, together with the review of contact, together with the application to commit, should all be heard at a fixture before him on 12th April. He ordered contact in the interim on alternate Saturdays. Two visits followed, thereafter the mother again disobeyed.
On 18th January it seems that Judge Price first of all commented that if things continued as they were going, the likelihood was that H would have to move to her father. He said that the situation was beyond the mother's control and that contact was an important part of H's upbringing. He also warned the mother that he would send her to prison for her disobedience, that he was not going to do it that day, but that if in the end she continued to ignore the orders of the court that was what he would surely do. So that could be described as the first judicial warning. It was clearly given in the plainest terms.
There was a hearing on 23rd March when the issues listed for 12th April were adjourned over to 25th July with a time estimate of one day. For reasons which I do not fully understand, on 13th July a paper application was issued by the mother for permission to rely on the evidence of Dr Jawad. It seems to me that insofar as she was appealing, one of the primary issues was whether the District Judge had been right to exclude Dr Jawad. However, be that as it may, on 19th July His Honour Judge Price heard that application and granted it, providing that Dr Jawad was available for the 25th.
When the case came on before the Recorder on 25th July, it is agreed between solicitors who attended that his opening observations demonstrating that he had spent time in perusing the papers were to this effect: the Recorder enquired whether the bailiffs were in the building for this woman. He went on to mention specifically the possibility of imprisonment at Pucklechurch, which is apparently a prison for women.
The transcript which has been obtained for the purposes of this hearing does not record those opening remarks, and there is some puzzlement as to why the transcript commences at what otherwise would seem to be a natural beginning. For the first transcribed utterance is from the Recorder who says "Whose application is it?" Mr Furness, who represented the father, said that it was his application and the Recorder said that he had Mr Furness' helpful skeleton and chronology. That skeleton and chronology has helpfully been provided to us by Mr Howard.
On page 1 Mr Furness listed the applications before the court as three in number, namely, the father's application to commit, secondly, the father's application for a residence order and, thirdly, the review of contact. On page 3 of the skeleton, in relation to the mother's appeal, Mr Furness recorded:
"By letter the mother's solicitors have indicated that they no longer seek to pursue the appeal, the order of 18th January having made the appeal redundant."
The Recorder established that there was no rival skeleton. Mr Jenkins who represented the mother said that he had not had an opportunity for drafting one. It seems that Mr Jenkins had come into the case at relatively short notice in substitution for counsel who had represented the mother on earlier occasions. Certainly at the major hearing in front of the District Judge the mother had been represented by Mr Reed. The Recorder then said to Mr Jenkins:
"This is an application to commit your client to prison, as I understand it."
Mr Jenkins said:
"Yes, as I understand it it is an application to commit and also an application by the father for residence. But the matter has taken a rather confusing course. Certainly I have found it slightly confusing because there was a full hearing in December with notice to appeal and when the application for leave was heard in January Judge Price ordered further expert evidence in respect of [H] and later, last week, allowed expert evidence as to the psychiatric health of the mother, and both Dr Hasan and Dr Jawad are here. So certainly I would be seeking to adduce that evidence and effectively to invite the court to reconsider the findings of the District Judge in the light of the medical expert evidence."
The Recorder intervened:
"Just a moment, I understand that the application to appeal is no longer proceeded with. Are you telling me now that it is a live issue?
MR JENKINS: The indication that it is not being proceeded with came by letter. But what I am aware of is that the order——
THE RECORDER: Are you going ahead with the application? Are you appealing District Judge Wyn Rees' order or not?
MR JENKINS: In short, yes. But I would be inviting the court to do it in this way, to hear the medical evidence——
THE RECORDER: But medical evidence cannot excuse a court order unless you are saying that your client was mentally incompetent and needs to be represented by the Official Solicitor."
Later there was another exchange on the same territory when, in response to Mr Jenkins, the Recorder said:
"Of course I have listened very carefully to the argument. I do understand your client's anxiety. I will listen very carefully to the medical evidence that has been adduced. At the end of the day there was a three-day hearing before the District Judge. He gave a very careful judgment. I find no challenge to his findings of fact in the papers before me. The notice of appeal deals with matters which have been overtaken by events. It is the...
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