Re S (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Moore-Bick,Lord Justice Aikens |
| Judgment Date | 23 February 2010 |
| Neutral Citation | [2010] EWCA Civ 705 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 February 2010 |
| Docket Number | Case No: B4/2009/1791 |
[2010] EWCA Civ 705
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM READING COUNTY COURT
(His Honour Judge Hamilton)
Before: Lord Justice Thorpe
Lord Justice Moore-bick
and
Lord Justice Aikens
Case No: B4/2009/1791
Mr Duncan Brooks (instructed by Pro Bono Bar Unit) appeared on behalf of the Appellant.
Mr Paul Mallender (instructed by Frances Lindsay and Co Family Law) appeared on behalf of the Respondent.
Lord Justice Thorpe:
We are reviewing proceedings in the Reading County Court which came on for hearing before HHJ Donald Hamilton on 11 and 12 June. The case before him concerned a girl named L, who is six years old. Her parents cohabited but did not marry. They were together at the date of her birth and separated when she was about 15 months old. Thereafter they have in differing ways shared her life and the responsibility for her upbringing.
The applications which were before HHJ Hamilton are unfortunately not in any of our bundles. We are informed by counsel that there was an application by the mother for a residence order and an application by the father for a shared residence order. For that hearing the mother was represented by Mr Mallender of counsel. The father was unrepresented but had, as a McKenzie Friend, somebody from the respected organisation Families Need Fathers. It seems that everybody acted with the laudable objective of arriving at a consensus which would spare the parties the trauma of a two-day final hearing and allow the judge to launch this latest stage of L's upbringing with the desirable parental consent that had escaped them since the issue of their competing applications. There are many instances in which the pursuit of an accord extends rather than reduces the duration of a final hearing. So there were warning signs when at the end of the first day and late in the day the judge adjourned the case over without any consensus having been reached.
Things did not proceed promisingly on the second day. All sorts of issues escaped agreement and the judge found himself, I surmise not without a degree of vexation, delivering an extempore judgment late on the afternoon of Friday 12 June.
The order which resulted bears the hallmarks of this fruitless pursuit of accord. So there are no less than 15 paragraphs of recitals upon the parties agreeing this and on the father agreeing that until we arrive at the paragraphs of order. There are nine paragraphs of order and the structure and the extent to which the crucial paragraphs were within or without the judge's jurisdiction lies at the heart of this appeal. Before I consider the point of law, I record that the father was by no means satisfied with his experience during the two days of trial before HHJ Hamilton. Unfortunately he left the building at what seemed to be the conclusion of HHJ Hamilton's judgment only to find that there was a resumption initiated by Mr Mallender, who wanted a ruling as to when contact for father's time was to begin on the following day. When the father was alerted to this he found it difficult to rejoin since by then the court doors had been locked. When he finally gained admission, the judge was in the course of delivering a further brief judgment, which is reflected in a second order in manuscript written and signed by the judge. It seems that when making that second little order the judge reserved the case to himself, but that reservation does not appear in the short manuscript but in the typed order which embodies the rulings given by the judge during the course of his 60-paragraph judgment.
The father's dissatisfaction led to the issue of a notice of appeal on 21 July and that was considered at an oral hearing by Wall LJ on 2 December. He adjourned the permission application for oral hearing on notice with appeal to follow and that is the hearing that has been listed before us today with a time estimate, an ungenerous time estimate, of an hour and a half.
The father, as a consequence of the judge's ruling, has been able to achieve the services of the Pro Bono Unit, and Mr Duncan Brooks of counsel on 17 February delivered an admirably clear skeleton argument to supplement and essentially replace that which the father had filed as a litigant in person. His full skeleton was supported by what he described as a skeletal summary and by a chronology. That attracted a response from Mr Mallender, to which there was a reply from Mr Brookes and finally a rejoinder from Mr Mallender. So the points that must be decided were very fully rehearsed in these written exchanges. So we were not obliged to ask Mr Brooks to say very much in amplification of his clear submissions.
This is his primary point. Paragraph 1 of the order provides: “The father shall have the care of [L]…” Slightly different language in paragraph 2: “The care of [L] within the school holidays shall be arranged as follows:”. In paragraph 2c the language moves into the passive: “L will be cared for by her father”. Then in d “L will spend Christmas 2009 with her father”. And in paragraph 4 the language becomes: “L may be in the...
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