RW v SW

This is an application by Mr. RW (whom I will for the purposes of this judgment call “the father”) for permission to appeal against an order made in the Principal Registry of the Family Division (the “PRFD”) by His Honour Judge Horowitz QC on 18 December 2009.

The case concerns the father’s son T, who was born on 17 April 2000. He is thus now 10 and was 9 when the matter was before the judge. The judge made an order that T’s mother, SW (whom I will for the purposes of this judgment call “the mother”) should make T available for: (i) indirect contact twice a week with the father (the indirect contact to take the form of Emails / letters) and (ii) direct contact four time a year for two hours. The mother was to be present at such contact. The judge also imposed an order under section 91(14) of the Children Act 1989 (the Act) prohibiting the father from making any further application under section 8 of the Act without the leave of the court for a period of two years. The judge reserved any such application to himself and refused the father’s application for permission to appeal.

Both the mother and the father were in person before the judge, although T was represented by the National Youth Advocacy Service (NYAS) and there was a report from the NYAS guardian, Mr. Vobe dated 9 November 2009. Most unfortunately, adverse weather conditions prevented Mr. Vobe attending court. The judge, therefore, spoke to Mr. Vobe over the telephone, and reported the gist of his conversation to the parties. It is, however, right to record; (a) that the father did not have the opportunity to cross-examine Mr. Vobe; and (b) that the judge followed Mr. Vobe’s recommendations as set out in his report.

The father seeks this court’s permission to appeal on a variety of grounds. In essence, however, he submits that the “softly softly” approach advocated by Mr. Vobe and embraced by the judge was plainly wrong and likely to lead to the termination of all contact between him and T rather than its expansion. He argues that the court was given, but ignored, a simple and more constructive alternative (his own proposals) which would have taken contact forward rather then bringing it to a close. He also argues that the judge erred in the exercise of his discretion in making the order set out above.

In relation to the order under section 91(14) of the Act, the father argues that the conditions for such an order were not met, either substantively or procedurally. He further submits that the judge “unwittingly” but directly overruled the report by Dr. Berelowits (a well known child and adolescent psychiatrist who had advised at an earlier stage in the case) and submits that the time has come to replace the NYAS guardian who, he argues, has failed properly to fulfil his court appointed role.

All these issues are forcefully and intelligently expanded upon by the father in his skeleton argument and in the documents he placed before the judge.

When I heard the application orally in March 2010, I had not had the opportunity to read the papers fully. I therefore decided that the fairest course was to hear the father and to reserve judgment. In the event, the effect of what the father said to me was that his case had been fully set out in writing. I accordingly took the papers away with me and have now read them all thoroughly, some of them several times. I apologise to the father that due to events including the intervention of Easter and the pressure of other work, it has not been possible for me to give judgment before today.

I have to acknowledge that when I first read the papers, my instinct was to refuse permission on the grounds that the judge had made no error of law, and that his exercise of discretion, albeit unusual, was properly open to him to the unusual facts of the case. Equally, I saw – and still see – little force in the procedural point which the father makes about the section 91(14) order, since Mr. Vobe plainly flags up the need for such an order in his report of 9 November.

I have, however, decided on reflection that this is not a case which should be determined by a single Lord Justice. The father is amongst many who feel let down by the system, and if his application is not to overcome the permission hurdle that is, I think, a decision which should be taken by the full court. I therefore propose to adjourn the father’s application for permission to a full court which can, nonetheless, consist of two Lord Justices, one of whom, at least, should have family experience. In the alternative, as this is an appeal from a Circuit Judge, one of the court’s members can be a High Court Judge, and if that High Court Judge comes from the Family Division he or she will have the necessary experience to render it unnecessary for the other member (the Lord Justice) to have family experience.

I direct that the father’s application for permission is not to be served on the mother and that the application be heard without notice to her. The mother makes it clear, in her “final” statement (see pages 229 and 230 of the bundle) that she has found the proceedings mentally stressful and financially costly. If the full court takes the view that the judge was right, and that the permission threshold has not been crossed, she will not need to be troubled further by the proceedings during the life of the current order under section 91(14). If, on the other hand, the full court takes the view that the father has an arguable appeal, it will, no doubt, list the matter inter partes. In that event, the mother will have to attend.

If my colleagues agree with me, and refuse permission to appeal, the father will at least have the consolation that his application has been considered by three judges of the Court of Appeal. If, on the other hand, they think I am wrong, the father will have his opportunity to argue that his appeal should be heard and allowed. Either way, the case will have been fully considered by this court.

Finally, the application cannot be considered urgent, given the nature of the judge’s order. However, it involves a child’s contact with his father, and should therefore be heard as soon as possible.