D (Children)

This is an application by Mr D. for permission to appeal part of an order made by Mrs Recorder Corbett, as she then was, on 8 May 2009. The underlying case itself concerns Mr D.’s two sons, who are now aged respectively nine and six.

The underlying application before the court is for permission on behalf of the children’s mother to remove the children permanently from England and Wales to Slovakia, which is where the mother comes from. That application is opposed in the interests of the children by Mr D., who is permanently resident in the United Kingdom, as I understand the matter, and wishes the children to remain here.

The case was initially heard by a district judge in the Luton County Court. Quite why that was I do not know, but I assume it was from pressure of work in the local County Court, because cases of this difficulty and sensitivity should not normally be given to the District Bench unless there is no alternative, or the district judge in question has a particular expertise. But in the event the district judge made a serious mistake. She had before her a CAFCASS Officer who had produced a very old report, and she decided that there would be no point in either party cross-examining the CAFCASS Officer on her historic report even though that report was in Mr D.’s favour. She assured Mr D., however, that she would take the report into account, but in her judgment, which I do not have, it does not appear that she did, with the consequence that when the matter came before Mrs Recorder Corbett on Mr D.’s appeal, the Recorder allowed the appeal and ordered that the matter should be reheard. My understanding, despite the terms of the order made by the Recorder, is that the hearing will now take place in early September with two days set aside.

The mother has the benefit of public funding and is represented by counsel. Mr D. for entirely honourable reasons is acting in person and the gravamen of his complaint is essentially this, namely that: it is in the interests of the children to be represented; there is nobody who is really able to put forward the children’s point of view; I, Mr D., am not a lawyer and therefore unable properly to do so; it is likely, therefore, that the judge will be seduced into making an order which is contrary to the interests of the children by the fact that the mother is legally represented. Mr D. makes the wider point, which in discussion during the course of the morning I suggested to him was more political than legal, that any society which valued the interests of its children should indeed give representation to them because they have rights equal to those of their parents, and that it was scandalous that the English system did not permit separate representation for children in the circumstances such as these when there was a real risk that the court would make an order which was contrary to their interests.

Before I go any further, I think I need to explain to Mr D. what the function of this court is. This is not a political court. Judges fortunately survive governments. We do not have to stand for election. We are not political. The Government frequently has to argue its case in this court, and this court decides every case according to the law. If the Government has a good case it wins, if it has a bad case it loses. It is as simple as that. It is not a political court. The corollary of course is that we have to obey the will of Parliament. Parliament has decreed that judges should make decisions over children, that judges determine the best interests of children and the Act of Parliament has given the judiciary a discretion over the circumstances in which children are separately represented. In some jurisdictions like New Zealand, as I pointed out to Mr D. in the course of argument this morning, all children are automatically separately represented, but New Zealand of course has a tiny population and no doubt has more time and money to spend as it properly should on its children’s cases. In this jurisdiction the ability for children to be represented has been delegated by Parliament to the judges, but at the same time Parliament has limited the amount of money which is available for litigation and for legal expenses, and therefore the ultimate arbiter in many cases of whether or not someone should receive public funding is the Legal Services Commission.

Now those may all be issues about which individual judges feel very strongly in political terms, but our job in this court is simply to apply the law, and when someone like Mr D. seeks permission to appeal my function is to review what the judge did and ask myself, well, did the judge make an error of law, one, or secondly, has he or she exercised her discretion in a way which is so outside the area of reasonable disagreement that she must have been wrong? And that is a very limited function. If I had been sitting at first instance to decide this case, I might have decided it quite differently. I might well have directed that the children should be separately represented, but that is not the test. The test is: has the judge done anything wrong?

I do not have a transcript of the separate judgment which the judge gave in relation to the question of separate representation of the children. What I have in relation to it is a note which has been prepared by counsel for the mother which has been seen by the judge and approved by the judge. It was an ex tempore judgment and the relevant passages read as follows:

“Mr Chapman [that is the counsel for the mother] has referred me to the President’s Practice Direction of 5^th April 2004 concerning representation of Children in Family Proceedings Pursuant to Family Proceedings Rules 1991, Rule 9.5 [2004] 1 FLR 1188. He says that the criteria therein are not made out and that appointment would create delay. If the children were joined as parties it would be several months before they would be represented”

What the Recorder then did was to go through the Practice Direction item by item, and the Practice Direction is reported at [2004] 1 FLR and indeed is set out in full in the document in my papers, and what the judge did was to go through each of the examples which the Practice Direction gives of circumstances in which a child should be separately represented, and effectively says that none of them applies in the instant case. Mr D. does not agree with that. For example sub paragraph (b):

“Where the child has a standpoint or interests which are inconsistent with or incapable of being represented by any of the adult parties…”

He disagrees with the judge when she said this was not the case here, as he says that he is, because he is a litigant in person, incapable of representing the interests of his children before the court and there is nobody else to do so. But from my perspective I do have to say that, looking as I do at the examples which are given in the Practice Direction, I cannot say that the judge made any error of law when she refused to say that any of the facts of the instant case came within the provisions. The person who is best able to put to the court the children’s wishes and feelings, which is part of the welfare checklist under section 1(3) of the 1989 Act, is of course the CAFCASS officer; and it is important to note that in the part of the order which is not included, the judge directed the CAFCASS officer to attend the hearing where the following issues would be addressed, namely:

“The matter shall be listed for rehearing as a matter of urgency … with a time estimate of 2 days plus ½ day judicial reading time, before a Circuit Judge. At that hearing, the court shall consider the application for leave to remove and the issues of residence, contact and specific issue orders.”

Paragraph 5 of the judge’s order reads:

“Mrs Blackwood [that is the CRO] is to be informed that the issues at the rehearing are to be those set out in paragraph 3 above [which I have just read], including the father’s request for an equal (50:50) share of time with the children should he live in Slovakia. Mrs Blackwood is requested to inform the parties in writing of her observations in this respect no later than 3 working days before the re-hearing. If Mrs Blackwood, upon service of this order upon her by the mother’s Solicitors, is unable to comply with this request she should inform the parties and the court immediately.”

That was an order made in May. Mr D. has not told me that she has so informed the parties or the court that she is unable to fulfil the terms of the order, and so when the case comes back before the judge in September there will be before the court up-to-date information from the CAFCASS Reporting Officer on the question of leave to remove and the issues of residence, contact and specific issue orders. So it seems to me that the first point is that the judge did not make any error of law.

Secondly, and Mr D. will have to take this from me, it is unusual for children to be represented in such applications. There are some cases, such as when the local authority takes care proceedings, when a child is automatically made a party and is represented by a guardian and by a solicitor. But in private law cases where the question of removal from the jurisdiction is in issue, the question of separate representation is the exception rather than the rule, so I cannot say that in refusing to order separate representation the Recorder has stepped outside the area of her proper discretion.

All that said -- and my view is that this application therefore must be refused -- I do have considerable sympathy for Mr D., and it is of course not for this court to advise him how to conduct his case, but it would be a thousand pities if at this stage he did not attend the hearing before the judge and if he did not play a full part in it. He has the option given to him by the judge of reducing to writing all his feelings and wishes in relation to the children and all the facts which he can marshal which fulfil the terms of the well known decisions relating to removal of children from the jurisdiction, and in my judgment he does himself very substantial injustice when he says that he would not be in a position to place a proper case before the judge. He is, I hope he will not mind me saying, a highly articulate person. He feels passionately, as one would expect, about the subject. He knows more about his children and about their circumstances than the judge. But the reason why judges and courts frequently advise litigants to obtain legal representation is because: firstly, they may not know all the subtle rules and procedures which the advocate knows; secondly, because they are often not wholly objective about the case they are advancing and the advantage of a lawyer is that a lawyer should be -- not always is, but should be -- objective about the client’s case. But as to knowledge, there is no doubt at all to my mind that Mr D. knows more about this case than most of the lawyers, certainly more at the moment than the judge, and in my view it would be entirely open to him fully to put his case before the judge, and because he is a litigant in person the judge has a particular duty to assist him and to make sure that his case is properly put. That is what happened before. The district judge had obviously got the case wrong. The specific grounds of appeal raised by Mr D. did not address the issue which the judge thought was wrong, but she nonetheless went straight ahead and said: I think the judge, as distinct from the district judge hearing the case, was wrong because she refused to take evidence from the CAFCASS Officer. In my judgment Mr D. would be doing his children a grave disservice if he did not attend the hearing in September, if he did not fight their corner and if he did not put before the court of everything he knows which he thinks would assist the judge in reaching a final conclusion.

I say that by way of aside because Mr D. is in person and I say it also because I do have considerable sympathy for the general proposition which he advanced, which was that all children in these circumstances should be separately represented. In an ideal world that might well be so, but under the law of England as it currently stands it is not the law and in my view, as I say, the judge did not make any error of law in refusing the application, nor did she stray outside the ambit of her proper discretion.

For those reasons the application must be refused. However, as I indicated to Mr D. in argument before I gave this judgment, I will ensure that a copy of what I have said is made available to him and to the judge as well as to his former wife and her advisers, so that, when the hearing takes place in September, the basis upon which he has put the application will be fully known to the judge as she will be aware of this court’s views as to the question of separate representation and her previous conduct of the proceedings.