M (Children)

I do not propose to add to this case another substantial judgment. Sufficient of the facts are set out in the judgment of Thorpe LJ on 23 November 2005 and of Ward LJ on 25 October 2006.

There are two girls who are the centre of this case; they are now 10 and 8. They have not seen their father since late 2002, that is five and a half years ago. They appear to have become fixedly opposed to seeing him. They now live with their maternal grandmother, mother having sadly died in June 2006. The issue in the case is in part why it has come about that the girls are fixedly opposed to seeing their father, but that is really a matter of history -- the more important issue is what, if anything, can now be done about it. Grandmother’s case is that nothing can be done about it; father’s case is that if grandmother could inspire in the girls confidence that it is a good idea to restore connection with their only remaining parent, the girls would be able to do so and it would be for their benefit. There have in the past been allegations of violence against the father. Those were considered and rejected on the evidence as long ago as May 2001.

The present application before me is an application for permission to appeal against an order made by HHJ Darwall-Smith on 4 January 2008. The case had been fixed for hearing for two days in April, that is to say, about now. However, when the matter came before the judge in January for directions she was told, principally on behalf of the respondent grandmother, that the case could not be dealt with in the two days for which it had been fixed. Four or perhaps five days was said to be needed. Father was represented by counsel who is experienced in this work. She voiced his very considerable concern at yet further delay, but it is clear from the judge’s judgment that counsel recognised that it simply could not be done in two days; moreover everybody was agreed that it would not be fair to attempt to do it by using two days in April and then adjourning part-heard for many weeks until a later date: that plainly would not be fair. In those circumstances the judge had simply no option but to put the case back further and to fix it for 2 June for the time that was going to be needed. She did not do that without enquiry of the parties whether an alternative was to go back to the family liaison judge for the circuit, Coleridge J, to see whether either he or another High Court judge could be made available, or, if necessary, the case transferred to London. However, that had been considered and counsel for father had to tell the judge that the Clerk   of   the   Rules, who manages the business of the Family  Division  High  Court  judges in this building, had indicated that sadly there was no slot which could be found even as early as 2 June; it would have had to be July. So that option was closed off.

When Ward LJ --who has more than a passing acquaintance with this case, having seen it twice before -- saw the present application, he recognised that there was simply no choice for the judge in the County Court and he refused permission to appeal on paper. Mr M, who has appeared today before me in person, is realistic enough to understand and accept that the judge below was right and Ward LJ is right; there was no alternative. The absence of avoidable delay does indeed lie at the heart of family justice but attention needs to be paid to the word ‘avoidable’. The courts, like anybody else, can only do the possible; they cannot do the impossible, and in this case, as at January, there was nothing else to be done. Mr M realistically tells me that he does not expect me to grant him permission to appeal against the order adjourning to June. He is here, he tells me, because of his gathering, enormous frustration at what appears, from his point of view, to be a succession of delaying tactics on the part of grandmother, and, if not that, what appears to be a slide in time which has delayed the necessary decision on the central question in this case now for far too long.

I suspect that his principal aim is to encourage me to say something now which has the effect of preventing any further risk of a yet further delay after the present date fixed in June. I do not have the management of this case and I have only heard one side. I need say nothing to that effect. I have no doubt that HHJ Darwall-Smith, who is very experienced in this work, will have very much in mind the absolute necessity that this issue is faced and grasped and a decision made about it; and she, like I and other judges in this court, will have no difficulty in seeing how unsatisfactory it is that these girls have not now seen their father for as long as they have. None of that means that the solution to the case is an easy one. Cases of intractable opposition to personal relationships are very frustrating but also very difficult to solve. Nothing that I say is meant to suggest that it is likely to be easy to achieve the result that father wants to achieve, but I understand his frustration and I have absolutely no doubt that HHJ Darwall-Smith does as well.

Father has had the advantage of a conference with leading counsel at the instigation of what is plainly an experienced junior member of the Bar who is representing him. He tells me that application has been made to the legal aid authorities for a representation order for leading counsel and that, at present at least, that has been refused. The making of a representation order is a matter for the legal aid authorities and not for this court, and I reiterate that I have only seen one part of the case. It is, however, appropriate to say that, had father the resources to fund his representation himself, this is a complicated and worrying enough case for him to seek representation by leading counsel, probably alone rather than with junior counsel. That is something which the legal aid authorities will no doubt take into account if and when they are asked to look at the question of representation again. I am not prepared to say more about representation than that.

For the reasons that I have given, and as Mr M expects and expressly accepts, this application must be refused.