O v O; O (Children)

Thursday, 12th May 2005

There are five applications to appeal listed before me this morning. The first in time is the application to appeal against HHJ Hornby's order of 18th August 2004 ordering the applicant to leave his matrimonial home and not return to it, granting injunctions against the use of violence and molestation in the usual terms.

The applicant complains that the judge did not really take account of the voluminous evidence he had submitted to the court, but there is nothing before me to indicate that the judge failed to have regard to the material. The applicant's great problem is that the judge simply did not believe him and, in the result, the orders were almost inevitable. The judge did not believe the applicant, among reasons, that he was denying medical evidence and some evidence from the police and was, in effect, submitting that the doctor and the police were in a conspiracy to cause him harm. The judge was totally entitled to come to that conclusion and I can see no real prospect of success in attacking those findings. They included findings of assault. The applicant says that that happened on a public holiday in May and that there is no corroboration of it, but those were essentially for the judge, and he had a wealth of corroborative evidence from doctors and the police reports to justify the findings that the applicant had been guilty of violence. He correctly applied section 33 of the Act and weighed the material and circumstances and he was satisfied that the applicant had somewhere to go by way of alternative accommodation in his father's home, and that the wife had nowhere else to stay. They were equally short of money and the needs of the children were that they live with their mother. I can see no real prospect of successfully attacking that judgment and I would dismiss that appeal.

The second application is more complicated. It is against HHJ Hornby's order of 19th October 2004. The order reads:

"The application for permission to appeal the order of District Judge Millard made on 16th July 2004 shall be refused."

The applicant does not appear to have a copy of the District Judge's order. He is entitled to have a copy of the order. Indeed, it should have been provided to him by the court. If he has not had it, he should go back to the court with this judgment and seek a copy of the order.

There is, I should explain for his benefit, a difference between the order that is drawn and a transcript of the evidence or a transcript of the actual judgment leading to the making of the order. All I am permitting is a copy of the order. If he wants other transcripts, I am afraid he must pay for them.

There are two difficulties facing this appeal. The first is that the applicant seeks permission to appeal against a refusal of permission to appeal. I am afraid that simply is not possible. The effect of section 54(4) of the Access To Justice Act 1999 does not permit an appeal against a refusal of an application for permission to appeal. So it seems to me I have no jurisdiction. Even if I did, this would be a second appeal and the applicant would have to show some important point of practice or principle or some other compelling reason. There is none. What seems to have happened is that there was an altercation between husband and wife. I am quite prepared to accept that the wife struck the husband with the television remote control and he retaliated and slapped her face in return. Judge Hornby is correct in his legal analysis that, no action of self-defence being raised, this was an assault on the wife. The District Judge appears to have made no order against the applicant and, although I regard this as an unfortunate incident, there is nothing I can do to assist the applicant in this regard. If HHJ Hornby thought at one stage in the earlier proceedings that the applicant had inflicted the harm on himself, but the applicant may have evidence from the hospital showing the degree of harm which would make that finding surprising. Nontheless, there is no error of principle and the judge was entitled to find the facts as he did. There is no point of any importance and the threshold of the second appeal is certainly not overcome. This was a technical assault for which no order was made and, in any event, I cannot see anything wrong with that.

The third application is to appeal the order made by HHJ Roberts on 17th November when the Judge dismissed the applicant's application for a residence order in respect of the two children, and made an order that they should reside with the mother. I confess I do not fully understand all of...