M (Children)

J U D G M E N T

1. LORD JUSTICE THORPE: The parties to this appeal are principally the parents of two children, Teuta born on 26 August 1997, and Aphra on 5 August 1999. The parents had married in 1996. The father comes from Montenegro. The marriage was relatively short lived in that the mother left the family home with the children on 4 November 1999. The home was in London.

2. The family proceedings that resulted from the move were in the Principal Registry, but quite shortly thereafter the mother and children moved to the Bath area. Contact, initially under an informal agreement considered by District Judge Waller in mid-November, took place at a contact centre in Bath. That arrangement was of short duration, and led to the issue of the father's application for contact which was the subject of a conciliation appointment in the Principal Registry at the end of February 2000 and a hearing before His Honour Judge Crya in this building on 10 July 2000. He ordered interim contact to the father on alternate Saturdays of two hours duration at the Bath contact centre. Sadly that arrangement broke down when the mother terminated the interim arrangement, denying the court welfare officer an opportunity of observing contact on 17 November 2000. In her report filed a few days later she recommended that there should be a referral to a consultant child psychiatrist. That was achieved on 11 December at a hearing before Judge Cook when Dr Jane Harris Hendrix was introduced into the case with a request for a report by the end of February.

3. In the interim the mother applied - as I would say, predictably unsuccessfully - for an order to end direct contact. That application was dismissed by His Honour Judge Collins on 19 December.

4. Dr Harris Hendrix's report of 23 February led to a listing before His Honour Judge Compston on 15 March 2001. We do not have his order, but it is reasonable to infer that he directed a trial of a preliminary issue on the mother's allegations of domestic violence.

5. That trial took place before Her Honour Judge Anwyl on 2 May 2001. She rejected the allegations, labelling the mother's case as exaggerated, although accepting that the marital relationship prior to separation had been marked by turbulent quarrels.

6. The case seems at that stage to have transferred to Bath. During the relatively early months in Bath the mother alleged that the father had hit the older child during a contact meeting. That rather improbable allegation was naturally denied by the father, and was followed by a further report from Dr Harris Hendrix of 17 July 2001. At that stage the case came before His Honour Judge Roach, sitting in the Bristol County Court. He had charge of the case from that date through until 22 May 2003. During that period the forensic responsibility passed to Dr Martin Gay, who observed contact between the children and their father in November 2002. In that month Teuta saw her father for the last time, and shortly after Christmas 2002 was the last meeting between Aphra and her father.

7. In 2003, with the approval of Judge Roach, the family was referred to a local resource, the Queens Square Assessment and Counselling Service. Shortly thereafter the case seems to have passed from Judge Roach to Judge Barclay who had the case briefly in March 2003, but certainly since October 2003 has had sole judicial management.

8. At the beginning of 2004 it became apparent to all that the mother was suffering from cancer. At a hearing on 2 March 2004, in reaction to that development, the judge decided that there should be a cessation of any attempt to re-establish direct contact for a period of nine months. There was, in fact, another hearing before him in July during that interim, but the return to court after the nine-month moratorium came on 13 December 2004 and there were then hearings before Judge Barclay on 14 June and 15 July 2005.

9. On 15 July 2005 Judge Barclay considered, and refused, three applications put before the court by the father's counsel, Miss Corfield. The first was for a transfer to the Family Division of the High Court. The second was for leave for the father to communicate directly with the children's school. He had at that stage nothing beyond an entitlement to an annual school report, anonymised to conceal the identity of the school. The third application that failed before Judge Barclay on that day was for a direction for contact between the two girls and the paternal extended family, particularly the father's brother, sister-in-law and niece. The father's perfectly understandable sense of frustration at the complete absence of any progress led to the filing of a notice of application for permission in this court on 29 July.

10. The case was referred to me on paper on 20 September when I refused provisionally, characterising the judge's first decision, namely refusal of transfer, to be not only permissible but correct. In relation to the other two decisions, I expressed the view that they were within the broad range of his discretion. I further pointed out that one achievement of the hearing on 15 July had been the appointment of a guardian for the children.

11. The judge had indicated on 15 July that he required the case back before him in four or six weeks' time. It seems that the case did not return to his list until 20 October when, as well as the parents, Judge Barclay had the advantage of the submissions of the children's guardian. The judge had directed that the parties attend the court some hours before the listing so that they would have an opportunity of careful discussion. So when the case was called on before the judge the advocates were able to tell him that the parties had reached a broad agreement, which found expression in Judge Barclay's order of 20 October. Essentially the parties had accepted the guardian's proposal for his contribution in the immediate future. He intended to form a relationship with the girls by visiting them on three occasions before Christmas, the last of those occasions to enable him to bear gifts from father to girls. He also proposed that the father should have direct communication with the girls' schools, subject to safeguards that were agreed. He also committed to exploring the restoration of direct contact between the two girls and their extended family.

12. What has over-shadowed the hearings before Judge Barclay in July and October is the tragic news that the treatment for the mother's cancer in 2004 had not succeeded and that she had developed secondary cancer which is incurable. Her life expectation, in the view of her consultant, was likely to be within the range of nine months from May last. This tragic development has inevitably had a huge impact on the case, on the management of the issues that are before the court and on the management of issues that are potentially before the court, issues that will inevitably arise, although not inevitably be introduced into the litigation arena. It has been agreed that in preparation for the future the maternal grandmother should be brought in to share parental responsibility. And although the father has not consented to an order, he has, much to his credit, accepted, without demur, that there should be immediate preparation for the day when the care of these two girls will pass to their maternal grandmother.

13. The provisional refusal of the permission application was challenged by the father at an oral hearing before Lord Justice Ward on 2 November. Lord Justice Ward granted permission. He introduced his reasoning by saying:

"I have a real serious niggling anxiety that something has gone very wrong in this case. I am going to give permission to appeal, but I am not at all confident that the outcome will progress the case as satisfactorily as the father wants."

He went on to express with clarity and feeling the extent of the tragedy facing the two girls. He made the telling point that without any relationship with the father the effect of the mother's death would be, in reality, to orphan them. He made the point that, given the gravity of the situation, it might well be one that merited transfer to a judge of the Division.

14. Immediately thereafter a further notice of application was filed to challenge the order of the 20 October. That was put before Lord Justice Ward, who, on 10 November, granted her permission to appeal that order, saying:

"Although it is obviously very very difficult to appeal an order made by consent, I nevertheless grant permission for the compelling reason that I have already granted permission in the previous appeal. The further appeal will not add much to the matters already before the court."

15. So at the speedy listing before us today, we have Miss Ball QC for the father leading Miss Corfield, Miss Platt QC for the mother leading Miss Hunter and Mr Ward for the children. We have received this morning skeleton arguments from Miss Ball, Miss Platt and Mr Ward. In her oral submissions Miss Ball has realistically recognised that, in effect, the order of 20 October is not open to appellate review. It has the consequence of removing two of the issues challenged by the application of 29 July, namely the issue as to direct communication with the school and the issue as to contact with the extended family. That leaves the challenge to the judge's refusal to transfer the case on 15 July to a judge of the Division.

16. In advocating her appeal, Miss Ball has, quite properly, drawn attention to the outstanding features of the case. She emphasises that this a case in which there has never been any finding against the father. The most that can be said is that he was a participant in a volatile and turbulent marriage. She emphasises that his relationship with Teuta, in particular, was happy and fulfilling during those periods of contact that took place. This is a case in which there were two years of contact before the breakdown, a breakdown which has now three years duration. She emphasises that the father throughout has behaved with patience, restraint and dignity. She says that it is transparent that the only obstacle to contact throughout has been the mother and her anxieties, which have been transferred to the girls. Then she is critical of the justice system for reacting to the diagnosis of the mother's cancer by opting for a nine-month moratorium rather than getting a grip of the case and accelerating the restoration of direct contact. She essentially advances her submission for a fresh start before a judge at the highest level of the trial system on the ground that, with the advantage of hindsight, this is a case in which the system has failed the children as a result of a lack of judicial proactivity.

17. That view of the history is inevitably the father's view of the history, and I would not characterise it as being only his view. It is not a particularly subjective view. It is a view that an objective reviewer might share.

18. Of course, it is easy to contemplate how things might have been done differently, how better outcomes might have been achieved had discretionary decisions been taken otherwise at various points in the history. We are not concerned with the rightness or wrongness of decisions that have been taken at various points through a long litigation history. Our task is to focus on the only judicial decision that we review, namely Judge Barclay's refusal to transfer the case to the High Court on 15 July. The decision that he took, as he explained in his judgment, was influenced by a number of factors. One factor is the desirability of maintaining judicial continuity. Another factor was the gravity of the mother's latest diagnosis and the difficulties and additional stress for her that would flow from the need to attend future hearings in London. Another factor was the uncertainty of achieving the same level of judicial continuity and the same ease of fixing future hearings without undue delay were the transfer order to be made.

19. The judge, in rejecting the application, was exercising a broad discretion. In my judgment, a judge who has had something approaching two years of responsibility in a particularly difficult case is best placed to decide whether the time has come for a transfer perhaps to a higher tier, perhaps to a different judge. The judge in the county court has a responsibility to ensure that cases are not too readily transferred to a judge of the Division simply because they are difficult or because he or she has a sense of growing frustration at the absence of any apparent achievement or progress. The responsibility to avoid superfluous transfer up is all the greater now than it was in the summer, as the evidence of the strains upon the capacity of the judges of the Family Division has become more apparent.

20. On the simple point with which we are this morning concerned, I am not persuaded that Judge Barclay's decision was other than orthodox and correct, despite the fact that there was nothing within the period of his management that could be signalled as progress along the road to the restoration of a relationship between father and children through direct contact.

21. For those reasons I would dismiss this appeal.

22. LORD JUSTICE RIX: I agree. This is a difficult and troubling case in which the mother's opposition to contact on the part of the father has not been shown to have an objective basis. It is a case made much more difficult and tragic by the terminal illness of the mother. In these circumstances it is necessary to feel sympathy for all the parties concerned.

23. Although the father's applications which led to the judge's order of 15 July 2005 failed, and to the extent of his appeal from those orders has failed again on this appeal, those applications did nevertheless lead, by consent, to the appointment of a guardian for the children. That appointment has, it seems to me, led in one sense to a turning of the corner as reflected, in any event, in the subsequent order made by consent of 20 October 2005: for that has led to the possibility of indirect contact through the guardian on the part of the father and to his ability to contact the children's school, and to learn about their progress and to the possible putting into place of further contact between the children and the father's family.

24. Nevertheless for the reasons given by my Lord, it seems to me that it is impossible for this court to say that the judge was wrong in his discretion not to move the case to the High Court and away from Bath, and not to force the pace further than the parties have been able to agree in the terminal months of the mother's life.

25. The future is, of course, as the future generally is, unknown, but I would hope that the tragic impending loss of the children's mother will not be added to by the practical loss of their surviving father.

26. LORD JUSTICE KEENE: I agree with both judgments. I, too, would dismiss these appeals.

Order: Appeals dismissed