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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 [2002] EWCA Civ 193 (31 January 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/193.html Cite as: [2002] EWCA Civ 193

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PETERBOROUGH COUNTY COURT
(HIS HONOUR JUDGE MCKITTRICK)

		Royal Courts of Justice Strand London WC2A 2LL Thursday 31 January 2002

1. LORD JUSTICE THORPE: Mr B applies for permission to appeal orders made in the Peterborough County Court by His Honour Judge McKittrick on 21 November 2001. The orders are at pages 10 and 11 of the bundle. The order at page 11 dismissed an application for an injunction which was issued on 5 November 2001 against three respondents: namely, Mr B's former wife; PA, the man who now shares her life; and SW, a solicitor who has acted throughout these proceedings for Mr B's former wife.
2. The judge dismissed that application for want of evidence and, in my opinion, there is no reasonable prospect of a successful challenge to that finding. Accordingly I dismiss the application for permission to appeal that order.
3. The second and separate order was made upon an application for a section 8 order in Children Act proceedings that had been issued on 16 November 2001. To that application there was only one respondent, namely, Mr B's former wife. Paragraph 1 of the order at page 10 dismissed the section 8 application. That dismissal results from the exercise of judicial discretion, which is properly reasoned. The application was for an order for the production to Mr B of his ten year old daughter's medical records. It was made against the background of an order that had been made by His Honour Judge de Mille on 21 September 1999. He ordered that direct contact between father and daughter be brought to an end and a provision that there be indirect contact by letters or cards, not greater than once a month, and appropriate gifts at birthdays, Christmas and Easter. The judge also made an order under section 91(14) prohibiting Mr B from making any application under the Children Act with respect to his daughter without permission of the court for a period of two years.
4. There is no doubt that Mr B has suffered considerable frustration at what he regards as his former wife's obstruction to his involvement in his daughter's life beyond the provision for indirect contact. He says that the only response he has received is one letter from his daughter, which was clearly written by his former wife. He has, however, managed to establish a good relationship with his daughter's school. The school has sent him reports and, in the year 2000, a copy of the school photograph. He says that the school's decision to send him a copy of the photograph was opposed by his former wife, and when her opposition failed she required the child to wear different clothes for the photograph that was to go to him. He further says that in the year 2001 the mother deliberately absented his daughter from school on the day that the photograph was to be taken in order to ensure that he did not receive another photograph.
5. None of this was the subject of evidence in the court below, and the prospects of Mr B succeeding in obtaining permission to appeal the dismissal of the section 8 order seemed remote. On the other hand, I have the feeling that his failure largely results from his having asked for the wrong thing. If, instead of asking for production of medical records, he had asked for a report, either annually or bi-annually, from his former wife together with an annual photograph, that application might well have succeeded. Since I am going to set up a further hearing, on notice to his former wife, that is something that I will look at briefly on the next occasion. If a sensible advance can be made at a hearing in this court, it will at least reduce the likelihood of yet another hearing in the county court.
6. I now turn to the real reason I am ordering a further hearing on notice. I am doubtful as to the validity of the second and third paragraphs of the order of 21 November 2001. Paragraph 2 reads:

"No application under the Children Act Section 91(14) to be brought by [Mr B] re his daughter for 3 years from today without leave of the court."

7. The transcript of judgment suggests to me that no application for such an order had been made. The judge made the order of his own motion and without giving Mr B any opportunity to oppose it. If that impression is correct, then I am doubtful as to whether the order was properly made. I also have some misgivings about paragraph 3 which reads:

"Respondents costs to be paid by Mr B in the sum of £1500 at £500 per month, the first payment on 21 December 2001."

8. It is to be noted that that is an order for Mr B to pay the costs of the three respondents, but within the Children Act application there was only one respondent. The order for costs should properly have been made in the order dismissing the injunction application. That reveals my fundamental misgiving, that the judge seems to have drawn no distinction between the costs of the misconceived injunction application, an application that involved four adult parties (the adult applicant and the three adult respondents), and the costs of the section 8 application involving only two adult respondents (the applicant and his former wife), an application which would not ordinarily expose the unsuccessful applicant to the risk of costs.
9. Certainly there was no endeavour to mitigate in any way this applicant's costs liability. The sum that counsel sought from the judge was the sum of £1500, which the judge allowed without any further inquiry or deduction. On that front too, it seems to me that that the applicant raises a legitimate question.
10. I will refuse the application for permission to appeal the short order appearing at page 11 in the bundle, but I will say that the application for permission to appeal the order at page 10, the order in relation to the section 8 application, be adjourned for a further oral hearing, on notice to the respondent, with appeal to follow if permission granted. I will say that it should be listed before me in a two-judge court and I give a time estimate of two hours. I will endeavour to correct this transcript swiftly and I will ask the office to send a copy to the respondent mother who will be the only respondent to the adjourned application for permission and to the appeal if appeal follows. Since I have dismissed the application for permission to appeal the order in the injunction proceedings, neither Mr A nor Mr W will be involved in the proceedings in this court.
Order: Application for permission to appeal adjourned to be heard before a two-judge court limited to the section 8 application. Appeal to follow if permission granted. Time estimate 2 hours. Both parties to have a copy of the transcript of judgment at public expense. (Order does not form part of approved judgment)