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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 (A Child), Re [2014] EWCA Civ 19 (21 January 2014) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2014/19.html Cite as: [2014] EWCA Civ 19

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Manchester County Court
HHJ RODDY
Case No. MA13P00247

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/01/2014

Lady Justice Macur DBE :

1. These are the father's adjourned applications for permission to appeal the orders of HHJ Roddy made on 3 June 2013 and 28 October 2013; the former allowing the mother's appeal from the order of the Tameside Family Proceedings Court, the latter her own order on a hearing de novo of the evidence and which consequently granted the mother permission to re-locate with their child E to London from Manchester.
2. The context of the applications can be provided by a brief resume of the proceedings as follows.
3. The mother and father have not been married. Their relationship is long since at an end but they have co-operated in every sense in the upbringing of their much loved daughter now aged 8. E has flourished. The parents had previously been able to resolve any difficulties that arose from time to time by discussion between themselves. Unfortunately, a situation then arose which was not amenable to solution without resort to court proceedings.
4. The mother lodged an application for residence in the Tameside Family Proceedings Court on 14 June 2012. Her initial aim was to reconfigure the pattern of physical care which had evolved which she felt deprived her of any time at the weekend with her daughter. This may have been subject to compromise without court decision but for her pregnancy with the child of her new partner which crystallised her wish to relocate and establish a home full time with him in London.
5. The father issued his own application for a residence order on 24 October 2012, not with the intent to alter the status quo in relation to the actual care afforded to E by both parents but to block the relocation.
6. The case was heard in February 2013. The Family Proceedings Court concluded that it was not in E's best interests to move "at this time" and made a shared residence order.
7. The mother appealed. Her appeal was heard by HHJ Roddy sitting in Manchester County Court on 9 May 2013. She adjourned her decision but discussed with Counsel the possible outcome of the appeal process. It was agreed that in the event that she upheld the appeal she should not seek to substitute her own order, there being insufficient material before her, but order a rehearing in the County Court. A provisional date of 1 July 2013 was fixed for the hearing with the hand down of judgment anticipated in late May.
8. HHJ Roddy notified the parties on 3 June 2013 that she intended to allow the appeal with reasons to follow. None were forthcoming. The parties attended on 1 July 2013. The father was represented by different Counsel. A written judgment had still not been prepared. HHJ Roddy gave her "bare bones account of reasons" orally at the outset of the proceedings. Counsel's agreed note has been replaced by a transcript of the same which has very lately become available and been placed before us today.
9. The note reveals that Ms Anning, Counsel for the father, expressed concern at the lack of written judgment, submitted that the case be remitted to the Family Proceedings Court – whether for rehearing or "clarification" of reasons given is not clear - and asked HHJ Roddy to recuse herself. She was apparently unaware that the father's previous Counsel had not only agreed the provisional date for rehearing but also transfer of the case to the County Court.
10. In the event, HHJ Roddy refusing to recuse herself, the father agreed to the hearing proceeding before her. No application was made to adjourn the hearing to await receipt of a written judgment. This was entirely realistic in light of the indication of the nature of the reasons for allowing the appeal given orally by HHJ Roddy.
11. Evidence was heard on 1 July and 5 September 2013. Closing submissions were made in writing and submitted by 11 September 2013. A draft judgment was sent to the parties by e-mail on 28 October 2013 and approved judgment handed down on 8 November 2013.
12. The father's written application for permission to appeal was considered by the single judge on 29 November 2013. At that date no written judgment of the reasons for allowing the appeal from the Family Proceedings Court had been prepared. It was directed to be filed within 7 calendar days of the order adjourning the applications for permission to appeal with appeal to follow if successful. This direction was complied with and written judgment filed on 3 December.
13. The two applications for permission to appeal are governed by different considerations.
14. In the case of an appeal from a decision which itself was an appeal from a lower court, as in the order of 3 June 2013, CPR 52. 13 (2) provides that the Court of Appeal will not give permission unless it considers that- a) the appeal would raise an important point of principle or practice; or (b) there is some other compelling reason for the Court of Appeal to hear it. However, the appeal from the hearing de novo is subject to CPR 52.3(6) where permission to appeal can only be given where – (a) the court considers that the appeal would have a real prospect of success; or (b) there is some other compelling reason why the appeal should be heard.
15. Ms Anning, on behalf of the father has recognised the difficult task of obtaining permission for a "second appeal". Most applications would be refused on paper. In this case the single judge states that "[t]he reason(s) why the judge allowed an appeal…is not apparent… to allow an appeal for reasons that are only to be given after a re-hearing is the wrong way round".
16. It transpires that he was not provided with the agreed note of the "bare bones reasons" announced by the judge before re-hearing which is supplied in the court bundles subsequently prepared. Ms Anning's skeleton argument was inadequate to alert him to this. It is unsurprising in the circumstances that he adjourned the application to the full court since prima facie there was a significant procedural irregularity.
17. There is no question but that a failure to give reasons prior to commencing the new hearing would have been worthy of permission to appeal. The inevitable perception created would be that the reasons arose within the new hearing and not the appeal itself so as to manipulate the outcome desired.
18. In fact, as indicated above, brief reasons for allowing the appeal had been given orally before the hearing on 1 July commenced. I consider them to have been sufficient if succinct. They do not indicate any decision made in relation to the merits of the mother's application but rather concentrated on the perceived deficiency in articulation of findings and consequent application of case law by the magistrates.
19. The delay in giving reasons for allowing the appeal, or to deliver or hand down judgment, does not undermine the fairness of the appeal hearing of itself. Obviously the timing was unfortunate but the result had already been published. I do not consider that this feature either raises an important point of principle or practice or provides some other compelling reason for the Court of Appeal to hear it.
20. This does not alleviate the necessity to comment that the delay in delivering oral judgment or producing a written judgment timeously, although understandable in the face of the unremitting pressure of work undoubtedly facing this and other family circuit judges, has created in the father a perception of unfairness, mistaken though it is. It is entirely unfortunate in the light of the emotive nature of the proceedings. HHJ Roddy has proffered her apologies to the parties for the distress occasioned.
21. Ms Anning has been unable to identify any new point of principle or practice arising from the circumstances. She argues that the judge adopted too critical an appraisal of the lay justices' written reasons and that this would fit the bill. However, her skeleton argument cites authorities to establish the necessity for a benign interpretation of written reasons prepared by or on behalf of a lay panel and may therefore be correctly designated as "old hat". There is nothing new. The point of principle is already established.
22. In attempting then to persuade us that there is a compelling reason to hear the appeal Ms Anning submits that the judge was wrong to allow the appeal. She seeks to draw together various strands from the Family Proceedings Court's written reasons to contradict the deficiencies she says were wrongly identified by the judge.
23. A prospect of success in itself in a second appeal does not amount to a compelling reason but is certainly an advantageous starting point. However, whilst commending Ms Anning's tenacity I disagree with her appraisal of the judge's decision as wrong.
24. A very benign reading of the lay justice's reasons affords the facility of divining findings and assuming the correct application of legal principles. Again, it is necessary and right to acknowledge the pressure of work facing the Family Proceedings Court. However I would adopt the judge's obvious and articulated concern that the bench apparently fell into error by making a shared residence order to fix location rather than to regulate care giving and so it appears that they could have applied the wrong legal criteria to the real issue before them. It may be that their written reasons belied their actual approach but the judge's decision on appeal is dependent upon the objective approach described.
25. In all these circumstances I would refuse permission to appeal the order of 3 June.
26. The application for permission to appeal the order of 28 October relies in part upon the procedural irregularity asserted and referred to above. Ms Anning alleges a breach of the father's "Article 6 rights to a fair trial". Upon invitation to identify the actual prejudice caused by later delivery of the reasons to uphold the mother's appeal she was at a loss to do so. This is through no lack of industry or valiant attempt to do so on her part but patently there was and is none.
27. The father was not estopped from applying for permission to appeal the order of 3 June. His preparation of his case for the new hearing was not obstructed. No application for an adjournment was made. The judge exhibited no bias in the hearing de novo and in fact found, in support of his case, that there was a de facto shared residence arrangement which impeded the mother's case.
28. Ms Anning argues before us that the judge should have adjourned the proceedings on 1 July and requested clarification of the lay justices' reasons. This cannot be correct. A request for clarification should be made, if at all, before the appeal is heard and concluded. None such was made by the father's counsel at the time. As the judge remarked on 1 July, to do so at this stage would be to request a complete re-writing of the decision not an amplification of approach or determination
29. The single judge describes HHJ Roddy's judgment of 28 October 2013 to be "coherent" and "logical". I respectfully agree. The criticisms raised in the grounds of appeal and skeleton argument settled by Ms Anning as to error of law, approach, gender discrimination and inadequate reason to depart from the CAFCASS officer's opinion are unfounded on objective appraisal.
30. There was ample evidence to find the facts she did. Her application of legal principle is sound. Her ultimate evaluation was well within the band of reasonableness. As Ms Anning ruefully conceded, her recitation of the well known phrase, "the more finely balanced the case the more difficult it is to appeal the judge's decision", in respect of the application for permission in relation to the judge's order in the appeal from the lay justice's decision, comes back to haunt her in this application.
31. This undoubtedly was a finely balanced case. The father is an utterly commendable father and must continue to have great input into his daughter's upbringing to ensure her welfare. This significant contribution he has made and will no doubt continue to make at whatever distance would weigh heavy in the balance but cannot necessarily trump the other aspects of welfare assessed by the judge. The weight she gave to the different factors was within her discretion. Ms Anning simply cannot demonstrate that she was wrong in the exercise of her discretion in this regard.
32. It follows that Ms Anning has failed to persuade me that there is a real prospect of success or that there is some other compelling reason why the appeal should be heard. I would refuse permission to appeal the order of 28 October 2013.

Lord Justice Kitchin:

33. I agree

Lord Justice Moore-Bick:

34. I agree