Re R (Residence)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall,Lord Justice Wilson |
| Judgment Date | 29 April 2009 |
| Neutral Citation | [2009] EWCA Civ 358 |
| Docket Number | Case No: B4/2009/0594 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 April 2009 |
[2009] EWCA Civ 358
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
on 12 March 2009 in the Luton County Court by
HIS HONOUR JUDGE EVERALL QC.
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Wall
Lord Justice Wilson
Case No: B4/2009/0594
Miss Faggionato (instructed by Purcell—Solicitors) for the Appellant
The 1 st Respondent appeared in person
Miss Kang (instructed by Pictons – Solicitors) for the 2 nd Respondent- by his Guardian
Hearing date: 7th April 2009
The appeal
The mother of a boy whom I will call CR seeks permission to appeal against an order made on 12 March 2009 in the Luton County Court by His Honour Judge Everall QC. The principal thrust of the mother's challenge is to a residence order which the judge made in favour of CR's paternal grandparents. The judge made a number of ancillary orders. It is, however, clear to my mind that they all stem from the residence order, and if that order falls, the whole of the judge's order requires to be reviewed. I will, accordingly, concentrate in this judgment on the residence order which the judge made.
CR was born in March 2000, and is thus now 9. At the date of the judge's order, when he was still 8, he was living with his mother. She sought an immediate stay of the judge's order, and permission to appeal. The judge refused permission to appeal, but granted a temporary stay of his order for seven days. That stay was extended by my Lord, Wilson LJ, who considered the mother's application for permission to appeal on paper on 23 March 2009. He directed that the application for permission to appeal should be listed for hearing before a two judge court on 7 April 2009, with the appeal to follow if permission was granted, and that the stay should continue until the determination of the application by this court.
At the outset of the hearing on 7 April 2009 the court invited submissions from the parties on the basis that permission to appeal would be granted. At the conclusion of the argument on 7 April 2009, we announced that permission to appeal would be granted; that the appeal would be allowed; and that the judge's order would be set aside. We also told the parties that we required further time to consider what order should replace that made by the judge; that we would communicate the terms of that order by Email on 8 April; and that our reasons for our decision would be communicated later in writing. This judgment thus sets out my reasons for reaching the conclusions set out in the order which we Emailed to the parties on 8 April, and which was (in its anonymised form) in the following terms: —
IT IS ORDERED THAT:—
1. There be permission to the mother to appeal against the orders made by HH Judge Everall QC sitting in the Luton County Court on 12 March 2009 other than those referable to the medical treatment of CR.
2. The appeal be allowed. Paragraphs A, D, and H to K of the recital to the principal order made by the judge together with paragraphs 1 to 9, 12 to 15, and 17 of the order are hereby set aside, and the words 'and the paternal grandparents' be removed from recital G.
3. The guardian's application for an order under section 37 of the Children Act 1989 addressed to the local authority is refused.
4. There be an interim residence order in favour of the mother with contact to the father in accordance with the order of district judge Ayres dated 13 June 2007.
5. Subject to the availability of Professor Zeitlin on 19 June 2009 there be a further hearing before Judge Everall QC in the Luton County Court on that day (19 June 2009) with a provisional time estimate of one day.
6. A copy of the judgment of HH Judge Everall QC delivered on 12 March 2009 and as approved by the judge be made available forthwith to Professor Zeitlin.
7. A copy of this court's judgments setting out its reasons for allowing the mother's appeal is to be made available to Professor Zeitlin and to the general medical practitioners of the mother, the father and the child forthwith upon them being handed down.
8. In the light of this court's judgments (and in particular its rejection of the proposals that, at this stage, it was in the interests of the child to reside either with foster carers or with his paternal grandparents) Professor Zeitlin is invited to report to the court in writing not later than 5 June 2009 on the following facts and matters:
(i) his current assessment of the mental state of the child, the mother and the father;
(ii) in the event that the child continues to reside with the mother with contact to the father (or in the event of the court – whether by consent or otherwise—making a shared residence order) the therapeutic intervention (if any) required to be undertaken by the mother the father and the child in order to minimise the future risk of harm to CR from the interaction of his parents;
(iii) such other facts and matters as appear to Professor Zeitlin to be relevant to the future management of the case in the light of this court's judgments.
9. Professor Zeitlin to be at liberty to see CR for the purposes of the report identified in paragraph 8 above and to discuss with the general practitioners referred to in paragraph 7 above any proposed referrals for therapy.
10. The letter of instruction to Professor Zeitlin to be despatched by the solicitors acting for the guardian (as lead solicitors) within 7 days of the receipt of this court's judgments.
11. Subject to his availability on that day, Professor Zeitlin do attend the hearing identified in paragraph 5 above for the purpose of giving oral evidence unless it be agreed between the parties in writing not less than 7 days before the date fixed for the hearing that his attendance is not required.
12. Professor Zeitlin's fees for the report identified in paragraph 8 above and his attendance at the hearing identified in paragraph 5 above be shared equally between the mother the father and the guardian and shall be a proper disbursement on the public funding certificates of those in receipt of public funding.
13. The parents and the guardian shall file evidence (the latter by way of a further report) as to the services (if any) available locally on the National Health Service to facilitate any therapy advised by Professor Zeitlin no later than 12 June 2009. Such evidence should include the means whereby it can be accessed, its duration and the length of any waiting lists for such treatment.
14. Liberty to apply to Judge Everall QC on short notice for further directions in the event that Professor Zeitlin is unable for any reason to undertake the work identified in paragraph 8 above.
15. The Family Assistance Order made in favour of the paternal grandparents be discharged.
16. There be no order as to the costs of the appeal save for detailed public funding assessments of those parties in receipt of public funding.
As the case is not finally closed, we imposed reporting restrictions. With the exceptions, therefore, of the name and location of the judge and the court, the names of counsel and their instructing solicitors, and the name of Professor Zeitlin, this judgment is written anonymously, and nothing must be published which identifies the child either by his name or by his whereabouts.
Preliminary observations: my approach to this appeal
Before setting out the facts, I need to make a number of preliminary observations. The first is that I have considerable sympathy for the judge. In order to help the parties, who were very anxious to know the result, he gave an extempore judgment late in the afternoon of the fourth day of what, on any view, had been a fraught, contested hearing in what is, again on any view, a difficult case. As he himself put it, this means that the judgment was not as “polished” as he would have wished it to be. I have no doubt that this is the case, and am very conscious of the fact that this court has had the luxury of time to consider its reasons.
Secondly, I am the first to acknowledge that the judge is an experienced, sensitive and humane family lawyer, and one whose decisions command respect. Furthermore, as was pointed out to us, he knew the case well. He was, moreover, exercising the wide discretion afforded to judges hearing private law applications under the Children Act 1989 (the 1989 Act). In order to demonstrate that his decision is plainly wrong, therefore, the mother has to show either some error of law on the part of the judge, alternatively that his exercise of discretion is sufficiently flawed so as to entitle this court to intervene.
Speaking for myself, I am in no doubt that there is a connection between the two factors identified in paragraphs 5 and 6 above. Had the judge given himself more time for reflection, a different outcome would, I think, have resulted. He would not, I think, have made a residence order in favour of the paternal grandparents. In my judgment, shortage of time fully to consider the matter plainly played a substantial role in his decision-making process.
I have come to the clear conclusion that a residence order to the paternal grandparents was not an order which it was properly open to the judge to make on the material before him. If necessary, I would be prepared to hold that in reaching that conclusion, the judge erred in law. However, above all I see the judge's decision as vitiated by the manner in which he conducted the so called “balancing exercise”:—see G v G (Minors: Custody Appeal) [1985] 1 WLR 647. In particular, it...
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