M (Children)

LORD JUSTICE WILSON: I have before me an application by Mr M, a father, who appears in person upon an application for permission to appeal against an order made in proceedings under the Children Act 1989 in relation to two children, both girls, N, who was born on 10 April 1996 and so is aged 10, and G, who was born on 10 November 1997 and so is aged 9. I propose to adjourn this application for hearing by two Lords Justices, probably Ward LJ and myself, and in any event next Monday, 5 February 2007. I propose to provide that such hearing be on notice to the first respondent, Mrs M, the mother of the girls, who is represented by solicitors, namely Bross Bennett, and on notice also to the girls themselves, who appear in the proceedings as respondents represented by Miss Quinn, their guardian ad litem, and by solicitors known as ChildLawPartnership, Guildford. I also propose that, were permission to appeal granted at the hearing next Monday, the court would continue to hear the substantive appeal forthwith.

Let me explain my reasons for making this unusual and urgent provision for a further hearing. On the face of it, this application for permission raises, by the standards of this court, an extremely minor issue, and not the sort of issue with which it usually concerns itself. The father wishes to complain about an order made by HHJ Walker, sitting as if in the Wandsworth County Court, on 30 October 2006. Before the judge for determination were various issues between the father and the mother referable to the arrangements for the girls and in particular an issue raised by the father’s proposal to remove the girls to South Africa on a holiday between Friday 9 February and Sunday 25 February 2007.

The father’s proposal was opposed both by the mother and by the Guardian ad litem of the children. It is unnecessary for me now to advert in detail to the grounds of their opposition. The main ground, however, was that the father’s proposal would lead to a loss of schooling for both girls. It was in particular that argument which found favour with the judge and which led him to provide that, while the holiday should indeed end on Sunday 25 February, it should begin not on Friday 9 February but on Wednesday 14 February. Even that, so the judge noted, would involve some loss of schooling, particularly in relation to G; but such was a loss which he was prepared to tolerate. He was not prepared to tolerate the larger loss of schooling which would have resulted from the father’s proposal.

It can readily be imagined why, in preparation for this hearing to be attended by the father alone, I strongly had in mind the width of the judge’s discretion in this type of case, and the fact that, in rejecting the father’s proposal, he had been following the recommendation of the neutral guardian. At the outset of today’s hearing, however, the father has placed before me a letter from the solicitor for the guardian to him dated Friday 26 January, which he, the father, received either yesterday, 30 January, or on Monday 29 January. The letter adverts to the unfortunate fact that, just after Christmas 2006, while being driven by the father in a people-carrier, N suffered an accident. The car skidded and, for reasons which may have to be the subject of investigation elsewhere if proceedings are taken on her behalf against the father for negligence, N was not wearing a seatbelt. She sustained injuries and has apparently been off school since the start of the current term. It seems that she will not be fit to return to school until Friday 2 March 2007.

It appears to be the case, although the mother may dispute this, that, although unable to attend school, N has been medically certified as fit to travel on holiday to South Africa. This unfortunate event and its consequence, namely that the proposal for the longer holiday which the father made to the judge can now be seen not to involve any loss of schooling for N, has led the Guardian, through the solicitor, by his letter dated 26 January, to state that she has reconsidered matters and on balance would no longer oppose the father’s proposal that the holiday should begin as early as Friday 9 February. In the letter the solicitor stated that he was sending a copy of it to the solicitors for the mother.

It will come as no surprise that my first question to the father, following my reading this letter, was to explain to me, if he could, what line the mother herself was now taking in relation to the length of the holiday. In effect the father told me that he could not answer my question. Thus I rose for a few minutes in order that the court associate could telephone the solicitor at Bross Bennett with conduct of the matter on the mother’s behalf. He made the telephone call and received the information that the mother remains strongly opposed to the length of holiday for which the father contends.

Such are the circumstances in which, so it seems to me, I should seek to achieve two things: first, the presentation by or on behalf of the mother to this court of her reasoned views in relation to the holiday and second, a final disposal on an urgent basis of this proposed appeal in one way or the other. It seems to me that the proposal to adjourn this application to be heard by two judges on Monday, on notice to the mother and to the guardian, achieves both those objects. Whether the guardian chooses to be present, whether represented or in person, at the hearing on Monday is a matter for her, having no doubt received advice from her solicitor. The court has, and will retain, the letter written by her solicitor dated 26 January; and, unless there is anything which she wishes to add to it, she may feel that there is no need for her attendance, whether by a lawyer or in person, and thus that it would represent a wastage of costs or resources.