Family Law Hub

E (Children) [2012] EWCA Civ 1777

  • Case No: B4/2012/2574

    Neutral Citation Number: [2012] EWCA Civ 1777

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM GLOUCESTER COUNTY COURT

    (HIS HONOUR JUDGE HARINGTON)

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: Tuesday 13th November 2012

    Before:

    LORD JUSTICE THORPE

    LADY JUSTICE ARDEN

    and

    LORD JUSTICE MCFARLANE

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    IN THE MATTER OF E (CHILDREN)

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    (DAR Transcript of

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    Official Shorthand Writers to the Court)

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    Ms Hannah Wiltshire (instructed by Tayntons Solicitors LLP) appeared on behalf of the Appellant mother.

    The Respondent father did not appear and was not represented.

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    Judgment

    (As Approved by the Court)

    Crown Copyright (c)Lord Justice Thorpe:

    1. This is an application for permission to appeal the order of HHJ Harington who was sitting in the Gloucester County Court on 19 September 2012. He had before him the application of Clair Esson for permission to remove the two children of the family - Kellise, who was then 11, and Kiyan, five -- to middle America in order for her to marry Mr Heyhoe whose family business is something in the nature of a builders' merchant in the States. He currently works alongside his father in this family business.

    2. The trial before HHJ Harington had been prepared by directions of district judges and in particular a Cafcass officer had prepared a report for the guidance of the court. The Cafcass officer was quite clear as to the wishes and feelings that the children had expressed to her, particularly of course the elder, Kiyan. She was equally clear in her recommendation that the mother's proposals were not compatible with the welfare of the children and should be refused. It is a comparatively rare case in which in arriving at a welfare determination the judge takes a different view. That is precisely what HHJ Harington did. He granted the mother's application, explaining briefly why he was not persuaded by the Cafcass officer's recommendations.

    3. So obviously this was a borderline case that could have gone either way and indeed perhaps independent observers at the outset would have forecast a success for the respondent father, so it is perhaps not surprising that the judge's order was effectively stayed by agreement to enable the respondent to apply to this court for permission to appeal.

    4. The appellant's notice was filed on 9 October supported by grounds of appeal and skeleton argument written by Ms Hannah Wiltshire who appeared in the court below. The papers were put before me for consideration last week and given that this is a case with an international dimension and given that there was very little else listed for hearing in this court today, I directed that it brought to in for an oral hearing on notice. In making that direction I acted on the fact that both parties had been represented below and Ms Lucas had appeared successfully for the mother at the trial. What I did not know was that Mrs Esson had privately funded representation in the court below and was exhausted financially and was not able to afford representation at this first hearing in this court. Accordingly the direction, which was enlarged to appeal to follow if permission granted, has proved quite impractical and effectively we have varied the direction again to be an application for permission simpliciter.

    5. Given the fact that Mrs Esson is unrepresented it seems to us that the fair way of dealing with this hearing is to treat the application as an oral application for permission without notice. So we have invited no response from Mrs Esson, we have simply weighed the submission advanced by Ms Wiltshire and have concluded that although she faces an uphill task with absolutely no guarantee of success at the end of the road, there is just enough in her submission that the judge has erred and reached a wrong conclusion in the allocation of weight to various factors. It is not essentially submitted that he has left out of account much or brought into account anything that he should not have done but simply that he arrived at a conclusion which no judge reasonably directing himself to the authorities could have arrived at.

    6. It follows then that Ms Wiltshire has gained only the opportunity to put that case to a full court on another day when it is very important that Mrs Esson should be represented, if that can be achieved by any means. She has explained that the impediment to her representation here as below is that her income takes her just above the limit set for public funding. But every effort must be made to achieve her representation on the next occasion. If public funds are not available then I would hope that the Bar Pro Bono Unit would provide her with counsel at no expense to her.

    7. Now I would emphasise that the Bar Pro Bono Unit is providing representation in many of these family appeals and the fact that this court is advancing for their consideration this case as being particularly deserving should be sufficient to ensure that Mrs Esson is properly safeguarded on the next occasion.

    8. I would hope that it would be possible to dispose of this case finally before Christmas. It should be listed before a court of three and I would give it a time estimate of three to four hours. I would propose that we make no orders as to costs today.

    Lady Justice Arden:

    9. I agree with Thorpe LJ. However, I leave open the question whether this is a borderline case or not as I have not heard both parties. I want to add this. We did receive a careful letter from Mrs Esson's solicitors and I would like to acknowledge my gratitude for that. We were unable to communicate a decision that there would be no hearing of the appeal until this morning. By that time, Mrs Esson had left Gloucester and was here with the children. Fortunately the children's uncle was able to be here to look after the children during this hearing. We are also particularly grateful that an officer of the Personal Support Unit was able to be present in court with Ms Esson.

    Lord Justice McFarlane:

    10. I agree with what has been said.

    Order: Application granted


Judgment, published: 11/01/2013

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Published: 11/01/2013

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