Family Law Hub

M (A Child) [2012] EWCA Civ 1687

  • Case No: B4/2012/1528

    Neutral Citation Number: [2012] EWCA Civ 1687

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM LEEDS COUNTY COURT

    (HIS HONOUR JUDGE ROSE)

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: Tuesday, 23 October 2012

    Before:

    LADY JUSTICE BLACK

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    IN THE MATTER OF M (A CHILD)

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    (DAR Transcript of

    WordWave International Limited

    A Merrill Communications Company

    165 Fleet Street, London EC4A 2DY

    Tel No: 020 7404 1400 Fax No: 020 7831 8838

    Official Shorthand Writers to the Court)

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    The Appellant father appeared in person.

    The Respondents did not appear and were not represented.

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    Judgment

    (As Approved by the Court)

    Crown Copyright (c)Lady Justice Black:

    1. This is an application by a father who wants to appeal against two orders made by His Honour Judge Rose on 5 October 2011. By the first order, the judge dismissed the father's application for interim contact with his daughter, N, who is now four years old. The second order arose out of an undertaking that the father had given on 7 July 2011, by which he made certain promises in relation to his use of Facebook.

    2. Up to that date the father had used his Facebook account to make public details of his views about various topics to do with his daughter, including his feeling that social services were covering up abuse of his daughter and his wish also to have contact with her. By the undertaking, he agreed to remove references to the child and to social services' representatives from his Facebook account and to keep his Facebook accounts open to public view so that they could be inspected by the local authority.

    3. On 5 October 2011, the judge found that the father had breached that undertaking by failing to remove the references from his Facebook account and by setting up a second and private Facebook account immediately after giving the undertaking. The judge sentenced the father to three months' imprisonment on each breach (there were two) to run concurrently and suspended for two years. The father was not present at court that day, nor did any legal representatives attend on his behalf. The judge was satisfied that he had full knowledge of the hearing.

    4. The reason that the judge dismissed the father's interim contact application was that the father had not appeared to pursue that. The judge observed in passing that even if the father had attended he would have had some difficulties with his application because it appeared that he was unwilling to cooperate with the psychiatric or psychological assessment that the mother argued was fundamental to direct contact, but the reason the judge dismissed the application was, as I have said, because the father did not turn up to pursue it.

    5. The father complains that the dismissal of his contact application is a breach of his rights, including his Article 8 rights as well as his daughter N's Article 8 rights and those of his sons (who are half siblings to N) who live with him. He also complains that the judge's decision was not in accordance with the provisions of the Children Act and that the judge failed to give weight to the different picture that the mother had painted in her immigration hearing about his parenting abilities and his relationship with his daughter. He also argues that the judge wrongly relied on the evidence of the social worker.

    6. The father not having attended before the judge to pursue his contact application, it is not at all surprising that the judge dismissed it and he cannot be criticised for so doing. There is no valid ground of appeal against that and I am not going to grant permission to appeal in relation to that order. As I have explained to the father in the course of this hearing, if he wishes to take up the issue of contact again now, he should do so by means of a fresh application at first instance, that is, to the court in Leeds. From what he said to me today, I have no doubt that things have moved on in any event since October last year and the matter would need to be considered in the light of all the circumstances as they are now. So that is not a matter for an appeal to this court.

    7. The order in relation to the Facebook account is in a different category. No permission is required to appeal against an order committing someone for contempt, which is what this suspended prison order was. However, because the father did not launch his appeal proceedings in relation to the committal order within the required time limit, he does need permission from me to bring an appeal out of time. The lapse of time is extremely significant. The 5 October 2011 was, I remind myself, the date of the order that the father wishes to appeal and the appeal was finally launched on 21 June 2012. I have been through with the father the circumstances with regard to this. The papers include an earlier appeal notice dated 18 January 2012 which does not seem to have come to anything. The history of why time has gone by in this way is partly set out in a document which the father has filed for the purposes of this hearing and was partly explained to me by him orally today.

    8. He apparently first tried to issue the appeal proceedings in the County Court in Leeds. That obviously was not successful because that was the incorrect court for the purpose. He then spent a considerable time, he tells me, trying to get the fees remitted for the launch of an appeal. The remission finally came through in January and it would seem that it was at around that time that the first notice of appeal was generated. The father also spent time attempting to get legal advice. His former solicitors, Henry Hyams, had been removed from the record because he did not want them to represent him anymore. He says that it was months before he could get his file released from them and he also says that he has found other firms reluctant to take up his case.

    9. Normally, I would find it very hard to be persuaded that the reasons that the father advances as to why time has elapsed without the appeal being launched justify the grant of permission to bring an appeal out of time. However, I am deeply conscious that the order that the father seeks to appeal is an order which could result in his imprisonment. Amongst the arguments that he wishes to advance on appeal are assertions that he did not in fact breach the undertaking of 7 July 2011 in relation to his Facebook accounts and because of his absence at the committal hearing there was only a one-sided exploration of the facts relied upon to support the application for committal for contempt.

    10. I notice also that the judge referred in paragraph 5 of his judgment to what he described as "procedural defects attending the committal application". I am not able to identify what those procedural defects were, but procedural defects can be of significance to whether a committal order is valid or not.

    11. I am not in a position securely to evaluate the merits or otherwise of the points that the father makes in his grounds of appeal about whether or not he was in breach of the undertaking, but given that the period of suspension of the committal order will continue to run for another year yet and given that it renders the father liable to imprisonment, I think that the only safe course is to grant permission for him to pursue his appeal on that aspect of the case out of time.

    12. I therefore give permission for the appeal to proceed in relation to the order whereby the father was found to be in breach of his undertaking of 7 July 2011 and was sentenced to concurrent terms of three months imprisonment suspended for two years.

    13. I refuse permission to the father to appeal against the judge's refusal to make an interim contact order in relation to the father's daughter, N.

    14. The appeal hearing should be listed with a two hour estimate, three judge court, can include one High Court judge, one to have family experience please.

    Order: Application granted in part

Judgment, published: 16/12/2012

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Published: 16/12/2012

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