B4/2005/1692
Neutral Citation Number: [2006] EWCA Civ 349
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WILLESDEN COUNTY COURT
(HIS HONOUR JUDGE COPLEY)
Royal Courts of Justice 
Strand 
London, WC2 

Tuesday, 7 February 2006
 
B E F O R E:

LORD JUSTICE THORPE

SIR MARTIN NOURSE

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IN THE MATTER OF D (CHILDREN)

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(DAR Transcript of 
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MS S GEORGE (instructed by Messrs J.D. Spicer, LONDON NW6 4JD) appeared on behalf of the Appellant.
MR G CAMERON (instructed by Messrs Farrell Matthews & Weir, LONDON W6 7AF) appeared on behalf of the Respondent.

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J U D G M E N T
1.	LORD JUSTICE THORPE:  This is an application for permission with appeal to follow as a consequence of a direction given by Wilson LJ on 18 November.  The appellant’s notice challenges an order made by HHJ Copley on 20 July 2005 in the Willesden County Court.  The notice of appeal was filed on 3 August and, thus, is just in time.  

2.	The relevant history is as follows: the parties to the appeal, the mother and the father have two children, child A, who is seven tomorrow, and child B, who is four.  In 2002 they lodged with the court a parental responsibility agreement and shortly thereafter in January 2003 they mediated and agreed contact.  However, by 10 March things had gone awry and the mother applied for a residence order and a number of ancillary orders.

3.	There was a hearing in November 2003, following a provisional residence order to the mother, in which HHJ Copley set the father’s contact as weekend contact; one weekend full from Friday afternoon until Monday morning, the next from Sunday afternoon until Monday morning.  When making that order he adjourned the question of residence for mediation.  Happily, following the mediation, a regime of shared residence emerged and was incorporated in another order made by HHJ Copley on 30 March.  The pattern of sharing was that the children lived with their mother during the school week, but again spent weekends with their father, the long weekend alternating with a short weekend.

4.	By December 2004, that arrangement had proved unsatisfactory and the father had a number of concerns as to the mother’s capacity to provide for the children during the weekdays.  Accordingly, the sharing of the children’s time was reversed so that thereafter the children spent the working week with their father and resided with their mother each weekend, all weekends being full weekends, Friday afternoon to Monday morning.  That was the pattern for school terms, and school holidays were to be shared equally.  The question of residence remained live and HHJ Copley directed a CAFCASS officer to report and set the case down for 26 April.  There was a directions hearing before another judge, a brief hearing at which the local authority was brought in, with a direction to serve a Section 7 report on the issue of residence and shared residence by 23 May.

5.	The final hearing was vacated and re-listed for late June with a direction for the Section 7 report author to attend.  There was a dramatic development in late May when DNA tests excluded the father as father of child B.  That may have contributed to the further adjournment of the fixture from two days in June to two days in November.  It was in preparation for the November hearing that the parties assembled on 30 July for a directions hearing, again before HHJ Copley.  Half an hour had been allowed, I think, in the court’s calendar.  In preparation for that hearing, the solicitors had been corresponding to reduce the issues.  By letter of 17 June, the mother’s solicitors had written:

“We have discussed the proposals that your client has made regarding the children and also noted his position regarding child B.  Our client considers it to be very important that the children spend as much time as possible together.  She would therefore propose that child B resides with her and would agree that your client have child B to stay with him overnight on one occasion midweek.  So far as child A is concerned, our client would suggest that child A spends four nights each week including the weekend with our client, and spends three nights during the week with your client.  She would therefore suggest that the night that child B spends with your client is on the middle of the three days that child A is with your client.”

6.	At the hearing, the intended author of the Section 7 report, Miss Caslake, was present and she proffered an interim report which recorded that Brent had had meetings or telephone contact with professionals on four occasions and had had meetings with the parties including home visits on five occasions.  The report considered the development over child B’s paternity, remarking:

“The father has informed the social worker that he does not wish to care for child B on a long-term basis, but is willing to care for him as much is necessary for child A and child B to continue their sibling relationship.”

7.	As so often in these cases, when the author sought the views of child A he expressed a wish that the adults would stop arguing.  When the case came before the court, there was a very large measure of common ground.  The father was prepared to concede the withdrawal of his residence order application.  He was prepared to concede the mother’s proposals in relation to child B.  The only outstanding issue was whether the extra night during the school term, the Thursday night, should be with mother or father for child A.  The parties negotiated what was a simple consent order to carry the case through to what they were anticipating was still to be a two day trial commencing on 1 November.

8.	HHJ Copley did not accept that approach.  He could not contemplate retaining in the court calendar a two-day fixture, 1 and 2 November, when so much had been achieved by negotiation and when the only outstanding issue was that of the Thursday night in school terms.  Accordingly, he converted the interim holding order into a substantive order and directed the vacation of the November fixture.  Very little drafting was required.  He only had to strike out “by consent” in the preface to the order and then to strike out from paragraph 1 the word “summer”, so that “during school summer holidays” became general rather than specific, “during school holidays”.

9.	He reassured himself by inviting Miss Caslake’s view of the course he proposed.  The judge, in deciding effectively to determine the Thursday night issue in the father’s favour, and contrary to the mother’s wish, was obviously having regard to the principle that children are better left settled during the course of the school week.  He was also having regard to the fact that that arrangement had been put in place in the previous December and was clearly working satisfactorily.  So when he sought confirmation or reassurance from Miss Caslake, she told him that she considered the present arrangement entirely sensible.  The judge then gave a brief judgment.

10.	It was not transcribed, as I understand it, because this was only a directions list, but as recorded by Ms George for the mother and approved by both Mr Cameron for the father and subsequently by the judge himself, he made these principal points:

“It seems to me that the father taking the child to school is the sensible way forward.  That makes sense to me and to the local authority.  I hope it makes sense to the mother, too.  

“Arguing about this is a drain of resources and public funding when arrangements proposed are eminently workable.  The current routine is clearly in child A’s best interests.  The stability of the school weeks, he knows he spends during the week Monday after school and Friday before school with Dad and the rest of time with his mother.  He has longer times with his mother during the school holidays.  It is entirely unnecessary to come back before the court to try and upset a perfectly sensible and proper arrangement of a settled routine.  

“It gives him plenty of time for mother during term time; the order should be as drafted.  There are no useful purposes for any further hearing to take place.”

11.	The judge rejected an application for permission to appeal and he added that nothing would be advanced by carrying Brent’s report from interim to final state.  It was always open to any party to make an application to vary, and in any event the order was flexible insofar as it permitted such further contact as might be agreed between the parties.  Accordingly, if the father felt it to be in child A’s best interest to spend the Thursday night with his mother, that could be arranged between them.  Mrs George has argued her appeal most attractively.  She has done her best with quite slender resources.  She has of course asserted that a final disposal at a directions hearing denies the parent the opportunity to give oral evidence and it deprives the court of a full range of reports.  This, it is suggested, amounts to a breach of the appellant’s Article 6 rights.

12.	Mrs George has also sought to contend that the judge effectively brought about, or alternatively blessed, a separation of the two boys, which is something that should never be done without a full hearing and without a careful judicial justification of what is contrary to ordinary general principle.  The second submission does not seem to me to survive Mr Cameron’s production of the letter of 17 June, which I have already cited.  Her first submission cannot be made good once the full circumstances of the hearing on 20 July have been established.  As was stated in the recent case of Re CP (A Child) heard in this court on 24 January 2006 and thus not yet reported:

“If a judge came to the conclusion that the proceedings had reached the end of the road, the judge had not only the right but the duty to bring proceedings to an end there and then.”

13.	This case might be said to be distinguishable on the ground that here both parties anticipated and indeed sought a further hearing.  But that is not a real distinction.  The judges have an important responsibility to eliminate from the system at the earliest possible moment any case which, by its retention, only operates to prolong the wait of other cases in the queue.  I accept that if a judge is to conclude a case against the submission of one of the parties at a directions hearing, that party suffers a shock, emerging from court with a sense of deprivation that was not forewarned.  Accordingly, there is an obligation on the judge in such circumstances to explain as best he can why he is taking the unexpected course and why it is justifiable on the grounds of proportionality.  It may be that HHJ Copley was faced with a full and busy list of directions and had not the opportunity to go to great lengths to try and assuage a sense of injustice in the mother.  

14.	I hope that this fuller investigation may have helped her to understand how it came about that the proceedings were curtailed on 20 July.  I have also sought to make plain that were we to allow this appeal we would have no alternative but to send the case back for retrial, which would achieve precisely the same situation as would be achieved were the mother now to apply for variation.  I do not at all encourage that course and would remind her of the effect on the children of continuing court battles between the parents.  It would only be her duty to issue an application for variation if there were substantial evidence that the present arrangements were working adversely for the children.

15.	For all those reasons, I would grant the permission application, but refuse the consequent appeal.

16.	SIR MARTIN NOURSE:  I agree and cannot usefully add anything of my own.

Order:  Application granted.