W (children), Re

LORD JUSTICE WALL: This appeal raises a very narrow issue, namely whether or not HHJ Hayward, sitting in the Brighton County Court and dealing with questions of residence and contact in relation to three children, was right to make an order that, save for the purpose of clarifying the order he was making, neither parent should make any further application in relation to residence or contact without the permission of the court.

The brief facts are these. Mr and Mrs W have three children. I will identify them only by initials: two girls, L and R, and a boy, C. The children are, respectively ,rising 15, 13 and 6. The children, as I have said, are the subject of proceedings between their parents in the Brighton County Court which are currently being heard by HHJ Hayward. There has also been a question of occupation of the matrimonial home, and in March of last year the district judge made an order under the Family Law Act that Mr W should leave the property, which he did. The district judge made an order for joint residence on what he described as a two-week rolling schedule, which provided detailed unequal division of the children’s time between their parents. I need not refer to the detail of that order. Mr W sought to appeal to the judge from the district judge against the unequal division of the children’s time with each parent. I think Mrs W was also dissatisfied with the shared residence order.

The appeal came before HHJ Hayward in May of last year. He adjourned it. He ordered a CAFCASS report and he varied the rolling schedule in certain minor respects. On 27 October 2005, the substantive hearing between Mr and Mrs W came on before the judge in relation to contact and residence. He heard the case on that day and reserved judgment to 8 November. He adjourned the application which Mrs W had made for sole residence, re-divided the children’s time and, having dealt with the substance, made a series of subsidiary orders one of which is now the subject of this appeal. He directed in paragraph 12 that there could be such other arrangements for the children as the parents might agree in writing. He said in paragraph 13 that in relation to that paragraph and the question of the children wishing to see their father and expressing their wishes to do so, that if the father was to make persistent or unreasonable demands of Mrs W or the children, that part of the order would be revoked. He then made the order which is the subject of complaint, paragraph 15, and he directed a review on 6 May 2005 at 10.00 am before himself in Brighton with a time estimate of 15 minutes.

Mr W sought permission to appeal as a litigant in person. He sought to appeal the contact order. He challenged the findings of fact which the judge had made and he also challenged what I will in loose terms call the section 91(14) provision; that is the provision that neither he nor Mrs W would be entitled to apply to the court in relation to contact or residence without the permission of the judge.

The application for permission came before Wilson LJ sitting alone. He delivered a full and careful judgment which has been transcribed. He rejected Mr W’s argument that the decision was so flawed that the case should be re-heard by a different judge with the children separately represented by NYAS, the National Youth Advocacy Service, and he also rejected Mr W’s criticisms of the work of the CAFCASS officer, Miss Rand. He also, I should say, rejected criticism which Mr W had made of the judge’s assessment of Mr W himself. However, in relation to paragraph 15 of the order, he came to the conclusion that Mr W had an arguable point. What he said about it is contained in paragraph 16 of his judgment, which reads:

“Third, the father seeks to challenge the judge’s provision that, save for the purposes of clarifying the order, neither parent should make any application in relation to residence or contact without the permission of the court. The father alleges that that order, which is of course of a type provided for by section 91(14) of the Act of 1989, was made by the judge without calling for prior argument from the parties or even giving them prior notice. It appears to be an order made without limit or time; and, although the judge provided for a review on 6 May 2006, that is a review for which only 15 minutes have been provided and it is, I think, perhaps artificial to consider that the judge should be taken to have made this order under section 91(14) effective only until 6 May. The judge’s motive in requiring, no doubt in the interests of the children, a cessation of forensic conflict between the parents is entirely understandable. Nevertheless there are, of course, extensive authorities as to the circumstances in which that extra filter upon the issue of proceedings referable to children can be imposed. It is arguable that the judge fell into error in making the order without, assuming it to be the case, notice to the parties or reference to those authorities. I am happy to be opening the door to an appeal to this course on what may prove to be a small point, and in particular perhaps to be thereby applying additional pressure upon the mother and indirectly upon the children. But in this one area, identified in the first ground for appeal, the father has an arguable case and is entitled to permission. In all other areas permission will be refused.”

It also seems to me, I might add for good measure, that the judge did not explain in his judgment why it was that he was making the order under appeal.

However, I do add a word of caution to Mr W so far as the last two paragraphs of the order are concerned. If he sees this order as some sort of green light for him to bombard either Mrs W or L and R with messages and telephone requests for further time, then the matter will have to come back to court and the Judge will have to consider whether there should be any latitude within the order. Paragraph 71 says:

“I shall make no order for costs. I shall order that neither mother or father will make any further applications to the court regarding arrangements for the children unless they first obtain permission of the court.”

As I indicate, that to my mind gives no reasons for the order the judge was making and indeed can to some extent be seen as inconsistent with paragraph 70, which indicated the judicial intervention should there be what the judge thought might be exploitation of the order by Mr W. Mr W attacks that direction in his skeleton argument, making the point, which he has repeated before us this morning, that as a litigant in person he was not given the opportunity to address the judge on the matter. The judge appears to have made the order without any form of discussion and furthermore it is, Mr W argues, quite contrary to the guidance given by this court in the well-known case of Re P and other authorities. Furthermore, it seems to me that the order might well prejudice Mrs W, because if she was unable to bring the matter back to the court because of what she perceived might be exploitation by Mr W of the order, she herself would be in the same position.

I have to say, in this context, that it seems to me that in a case where there is very substantial contact between the children and both parents, and where that is plainly in the best interests of the children, in circumstances where there is a joint residence order which clearly has teething troubles and the parents have difficulty in communicating, it does seem to me that as a matter of policy, the judge should adopt a hands-on rather than a hands-off approach, so that if either party does need help in implementing the order there should be access to the judge who knows about the case to facilitate that process.

So all in all, I am quite clearly of the view that Wilson LJ was right to identify this aspect of the case as being unsatisfactory. It was in my judgment, inappropriate for the judge to make a section 91(14) order in the circumstances of this case, particularly when he was directing a review and there was plainly a need for further judicial intervention to make sure the case was working properly.

I am sure both Mr and Mrs W appreciate, and they are both here in person this morning, that residence and contact arrangements whatever label one puts on them, do work best when parents are able to communicate and be generous in relation to contact. Children appreciate that enormously. These children are plainly devoted to both their parents and wish to spend the maximum time with each, given that their parents can no longer live together. What is clearly necessary, in view of the difficulties that have arisen, is that there should be a review; that in my judgment now becomes a matter of urgency.

I do not, speaking for myself, see any reason why HHJ Hayward should recuse himself from this case, even though we are reversing him on one point. He knows the case. He has the advantage of having read it and he is familiar with it. On the other hand, he may not be regularly available at Brighton and it is plain that the court has made a slip -- indeed more than a slip, an error -- in fixing a review firstly for a Saturday and then not ensuring that the following Monday was available if the date had been wrongly placed in the diary. Equally, the review is only listed for 15 minutes, which is manifestly inadequate, and therefore in allowing the appeal as we do, and setting aside paragraph 15 of the order, I would myself also direct that the matter be listed for review in the Brighton County Court before the 31 May 2006 with a time estimate of one hour, to be heard by HHJ Hayward, if available, but if unavailable to be taken by another judge.

At that hearing, both parties should come prepared preferably I think with something in writing to indicate their respective positions and the issue they wish the judge to address on that application, and I hope very much that the judge will be able to sort out the wrinkles in the case and ensure its future smooth running.

That, therefore, is the order I would propose in allowing the appeal.

LORD JUSTICE MAURICE KAY: I entirely agree.