Family Law Hub

T (A Child) [2012] EWCA Civ 200

  • Neutral Citation Number: [2012] EWCA Civ 200

    Case No: B4/2012/0014

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM THE HIGH COURT OF JUSTICE

    PRINCIPAL REGISTRY

    FAMILY DIVISION

    (HIS HONOUR JUDGE HAYWARD SMITH QC)

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: Wednesday, 8th February 2012

    Before:

    LORD JUSTICE THORPE

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    IN THE MATTER OF

    T (A CHILD)

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    (DAR Transcript of

    WordWave International Limited

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    The Applicant 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)

    Lord Justice Thorpe:

    1. This is a contact dispute between two young parents. The father is a medical doctor, the mother has a PhD. The father practises in Liverpool, the mother in Cambridge. Their only child is a two-year-old daughter and there have been proceedings in the Principal Registry relating, on their face, to residence and contact. However, beneath that fa├žade the real issue throughout has been the level of contact to the father and the paternal family and the conditions to which it is subject.

    2. There was a hearing in front of District Judge Malik. All parties were represented, including the child; there was a judgment given on 4 July and the intention of the district judge was that there would be a fuller hearing once the parties had disclosed relevant documents, including their full medical records, to a psychologist who was to provide a report on the parents' respective abilities to look after the little girl.

    3. The intention was that there would be a seven-day hearing commencing on 8 December, but because the interlocutory steps had not been completed on 11 November, HHJ Hayward Smith QC vacated their hearing and gave directions for an alternative listing in February 2012.

    4. The judgment that the father complains of is the judgment of HHJ Hayward Smith QC of 12 December. By that judgment he halted the progress to a five or ten-day hearing, and dealt with all issues summarily and without oral evidence. He granted the residence order to the mother and he made a contact order in favour of the father, which was only very slightly extending the order made by District Judge Malik. He made a particular provision that the father was at liberty to seek more generous, or more extensive contact if he sought a report from Dr Yates or some other expert and disclosed the necessary documents to enable the expert to review the case.

    5. The application for permission was brought in this court on 4 January and the central complaint is that the circuit judge was Draconian; he made sweeping orders, orders that disposed of the principal issues, and he heard no oral evidence. It is suggested that he took a very different view of the parties and of the history to that reached by District Judge Malik. So on the face of it this was an application with measurable prospects of success.

    6. However, weighing the merit of the application needs to be deferred to record that the intention that HHJ Hayward Smith QC entertained on 12 December, that he could cut across all the elevated argument and impose a simple regime that would be beneficial to all parties, that laudable objective has proved to be completely illusory. The case has rushed off the rails with only the first period of contact going smoothly, with the second period refused and with the third period, what the father says was an unprovoked attack which happily was recorded by a CCTV camera at the railway station. So there are now enforcement proceedings and the father understands that it is possible that a charge will be brought against the mother for the assault on 30 December and that the footage has been referred to the Crown Prosecution Service to take a view.

    7. It seems that the mother has also returned to HHJ Hayward Smith QC with an application without notice and obtained a harassment order. The father says that she was not frank with the court and, either wittingly or unwittingly, withheld information that was particularly due to the judge, since he was being asked to make a harassment order, a non-molestation order, without notice. That will all fall to be investigated when the issue returns before HHJ Hayward Smith QC on notice on 28 February.

    8. Now on the one hand, I might be tempted to bring this into the Court of Appeal to see whether firm handling in this court could not abbreviate or abate this terrible collapse into acrimony and violence. On the other hand, that is something that is already under investigation, not only in the Principal Registry but also in the Cambridge County Court, where the father has issued enforcement proceedings.

    9. In the end, I reach this conclusion. The shocking subsequent events are correctly being investigated and dealt with in the trial courts. The real issue before this court is: did HHJ Hayward Smith QC misdirect himself, exceed his proper jurisdiction, or otherwise arrive at an order that was plainly wrong on 12 December. I have reached the unhesitating conclusion that he did not err in any of those respects.

    10. The order that he made was, as he himself acknowledged, a very robust order, but he reminded himself of the overriding objective contained in the Family Procedure Rules 2010 and it was precisely in order to ensure that the case was dealt with expeditiously and with the interests of the child to the fore that led him to cut through the jungle of prepared litigation and come to an end which to him was obvious. It was not an end that was different radically from the end arrived at interim by the district judge. The order for contact was essentially the order made by the district judge and furthermore, it is the order for contact that the father was himself seeking on that day as an interim provision. The judge specifically allowed for a further application for enlargement once the father had collaborated with the court and with the expert to provide him with the necessary material on which to prepare his report.

    11. For all those reasons I refuse this application for permission to appeal, but I do urge that future proceedings be concentrated in one court and that as far as possible, either the proceedings in Cambridge be terminated or alternatively transferred to the Principal Registry.

    12. This case cries out for the Principal Registry, which can offer a level of expertise in family that is not available elsewhere. It also has strength in depth with some 18 or more district judges, and furthermore it seems to be geographically convenient, given that it is a meeting point between the father's base in Liverpool and the mother's base in Cambridge.

    13. For all those reasons this does not seem to me to be a case that this court should entertain at this stage.

    Order: Application refused.

Judgment, published: 08/02/2012

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Published: 08/02/2012

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