C (Children)

This is an application by the father of three children who are three girls. The eldest soon to be twelve, the second one will be ten in February, and the third is seven and a half.

The parents separated, as far as I can see it, in about 18 August, so I was told by counsel, when the mother moved out and went to live with her mother. She has established a relationship with another woman. Proceedings began, first before District Judge Mills on 3 September, when he adjourned the matter over to 18 September and directed a report from CAFCAS. I have not seen that order and it should be produced for us. On 18 September HHJ Barnett recorded an agreement, the effect of which was that the mother would rent a suitable property and pay for it and, on that basis, the court ordered that the mother reside at the family home during consecutive days when she would not be working as a police officer, and that the father would move out. He would come back in when she went off on the start of her four or five day shift and she would stay away. In other words, the children remained in the home with which they were familiar.

I note in passing that that order may not be properly drawn because it does not set out at the first recital of the agreement. That order could not be performed because the mother could not, or would not, find the necessary rented accommodation, and so the matter came back before HHJ Atkins on 19 October, when he ordered, simply, that the boxing and coxing arrangement continue, even though the alternative rental accommodation would not be available.

This appeal is being brought principally because it is submitted that HHJ Atkins failed to have proper regard to the factors set out in Section 33(6) of the Family Law Act 1996 and, in particular, failed to take heed of the crucial difference in the position of the father and the mother. The mother’s position was immeasurably better: a) because she had a job, b) because she was in good health, and c) because she had an alternative home with her parents (the maternal grandparents of these three girls) living some twenty minutes apart, or thereabouts.

So mother has a roof over her head. Father, on the other hand, (a) is unemployed, b) in ill-health, and c) although he had stated in a letter (attempting to compromise the matter on 20 September) that he would move out for two nights to stay with friends or family members, in fact he has been sleeping in his car; and certainly cannot find alternative accommodation for himself, either through the good nature of his family and friends, or because he cannot afford to pay for it. And so the imbalance is of father having to sleep in his motor car for the next period of two months before the matter can get back to court for three days, at the end of January, for a resolution of these insuperable difficulties.

I am hesitant about granting permission because this is very much a discretionary exercise, but I am persuaded that, on the face of it, the judge does not seem to have had sufficient regard to the housing difficulties the father faces and the problems of moving out for the four or five days of the mother’s work schedule. He referred to two alternatives. He did not, seemingly, address the other option: that father should remain in the home for most of the time and move out, if he needed to move out at all, for the two days that he felt he could impose himself on the members of his family. So, with a little hesitation, I will give permission to appeal, having learnt from the listing office that this appeal could be listed on 12 December before Thorpe LJ and Wall LJ; and it would be satisfactory for it to be heard by two Lord Justices with a time estimate of an hour and a half, and I so direct. That imposes a burden on this father to obtain a proper approved transcript of the judgment and, perhaps, of the evidence that was given, and to do so as a matter of considerable urgency; and there is no reason why it cannot be done. And so I shall give permission on those terms: list before two judges; pencil in 12 December (if that is not a convenient time it can be changed, but pencil in 12 December) and an hour and a half.