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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> B (Children), Re [2002] EWCA Civ 1048 (28 June 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1048.html Cite as: [2002] EWCA Civ 1048

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY COURT
(His Honour Judge Hamilton)

		Royal Courts of Justice Strand London WC2 Friday, 28th June 2002

1. LORD JUSTICE THORPE: By applications 2002/0451 and 2002/0452 Mr. B seeks permission to appeal an order made by His Honour Judge Hamilton sitting in the Birmingham County Court. The application 0451 challenges an order to this effect: (1) Mr. B's solicitors have leave to come off the record; (2) in the exercise of the court's discretion Mr. B is refused the assistance of Mr. Hitchock as a McKenzie friend; (3) counsel instructed on behalf of Mr. B may pass on to him her copies of the papers in these three proceedings together with her copies of the papers in the previous care proceedings, but Mr. B must leave all such papers in the courtroom; (4) Mr. B's former solicitors, Irwin Mitchell, shall not release to him any copy of any document filed with the court in the care or freeing proceedings but may release them to other solicitors instructed by him. Any further solicitor instructed is prohibited to release to him any copy of any document filed with the court in the freeing or care proceedings in respect of the children. The application 0452 attacked the judge's order dispensing with the consent of Mr. B and his wife to the freeing order and proceeding to free the children for adoption.
2. The orders made on that date are fully explained and reasoned in a reserved judgment signed on 7th January 2002. That judgment is a sequel to a comprehensive judgment of 16th May 2001 which explained the basis for care orders and orders under section 34(4) of the Children Act 1989 in respect of the six children under the judge's consideration. The judgment of 16th May 2001 provoked extreme reaction from the parents. The high watermark of their unwise and dangerous reaction was the kidnapping of some of the children from their foster carers, in the course of which significant injury was inflicted on the foster father. For those criminal activities both parents were subsequently sentenced to a term of imprisonment in the Crown Court proceedings. In addition, the father orchestrated extreme local protests, one of which had the effect of closing down the road traffic system in the Birmingham area for a period of some hours.
3. The quite extraordinary extremity of the reaction of the parents, and particularly of the applicant, Mr. B, presented Judge Hamilton with a considerable problem. At the trial of the fixture of the freeing applications Mr. B vacillated between using the legal team provided to him under public funding arrangements and, alternatively, using the services of the McKenzie friend. This was not the first time that similar problems had confronted the judge, although previously Mr. Mould had acted as Mr. B's McKenzie friend.
4. The judge carefully explained his reasons for making the orders which he did in relation to the conduct of the proceedings. He gave Mr. B every opportunity to consider and to reconsider whether he should dispense with the services of his lawyers. It was Mr. B's decision, wise or otherwise, to sack them. Thereafter, the judge explained his reasons for refusing Mr. B the assistance of Mr. Hitchcock as a McKenzie friend. In reaching that discretionary decision the judge specifically directed himself by reference to the relevant authority in this court, namely the decision in R v Bow County Court, ex parte Pelling [1999] 2 FLR 1126. Even after he had refused Mr. B the assistance of Mr. Hitchcock, the judge was at pains to ensure that he might repent and return to the care of his legal team. His unwavering decision was to proceed without them.
5. The judge's embargo on the release of papers was a discretionary decision fully justified in the light of the campaign that Mr. B had waged between the dates of the two hearings. There is in Mr. B's application nothing which gives me the least hesitation in concluding that all that Judge Hamilton ordered in relation to the conduct of the proceedings was manifestly within his discretionary ambit.
6. Nor do I see any greater force in his application to challenge the freeing order. Again, the judge explained himself with great care. He applied the relevant authority in reaching the discretionary decision that any hypothetical reasonable parent in the position of Mr. B would have afforded his consent to the freeing arrangement. I see no semblance of error or misdirection in the conduct of a difficult discretionary decision. The judge had been much provoked by Mr. B, both in and out of court. But it is plain that he was at pains to ensure that Mr. B received a fair hearing in his court. I see nothing to suggest the contrary.
7. Mr. B has not attended to pursue this application for the simple reason that he is in prison. He has, however, submitted representations by his first McKenzie friend, Mr. Mould. Those representations were faxed to this court this morning at 9.33 am. I have considered them carefully. I see no force in any of the complaints which Mr. Mould raises about Judge Hamilton or about the conduct of the proceedings in his court, or about the discretionary decisions which he has reached. In short, in my opinion these applications are both hopeless. They will be dismissed. They will not be relisted. A transcript of this judgment will be made available to Mr. B at public expense.
Order: Application refused; copy of judgment to be sent to the applicant at public expense.