B1/2001/2358

Neutral Citation Number: [2001] EWCA Civ 1910
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOW COUNTY COURT
(HIS HONOUR JUDGE HORNBY)
								Royal Courts of Justice
								Strand
								London WC2

							Thursday, 29 November 2001
B e f o r e:

LORD JUSTICE THORPE

LORD JUSTICE LAWS

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MICHAEL GAYLE
Applicant/Respondent

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JULIE GAYLE
Respondent/Appellant
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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0207 404 1400
Official Shorthand Writers to the Court)
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MISS N. MEHENDALE (Instructed by Messrs Hodge Jones & Allen, London, NW1 9LR) appeared on behalf of the Appellant

MR C. HALE (Instructed by Messrs Edwards Duthie, East Ham, London, E6 1DQ) 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 appeal brought against orders made by His Honour Judge Hornby in the Bow County Court on a committal application brought by Michael Andrew Gale against Julie Gale. They are the parents of a little boy, Nathan, who was born on 27 January 1995. The separation occurred when Nathan was only about 18 months of age and there have been tremendous difficulties over contact since the father's application for an order in the Bow County Court, filed on 25 January 1998. It is sufficient to go straight to an order made by Judge Hornby on 6 October 2000. That order was as follows: 
“1. The ... Mother ... be required to make available ... Nathan ... for contact to the ... Father, on ... 21 October ... between ... 2.00pm‑7.00pm, such contact to be supervised by the mother at 17A Mortham Street, Stratford... 
2. The ... Mother be required to make the child available for contact to [the father] on ... 4 November between the hours of 2.00pm‑7.00pm, such contact to be unsupervised by the mother and the father be allowed to take the child away from the mother's home at 17A Mortham Street ... and thereafter fortnightly until further order.” 
2.	To that order was attached a penal notice: 
“You must obey the directions contained in this order, if you do not, you will be guilty of contempt of court and may be sent to prison.” 
3.	Neither period of contact took place and, accordingly, in January 2001 the father issued a committal application in standard form setting out the two paragraphs of the order of 6 October and alleging breach by 1) failing to make Nathan available for contact to the father on Saturday, 21 October between the hours of 2 and 7; and 2) failing to make Nathan available for contact to the father on 4 November between the hours of 2 and 7. The requirements of the order could hardly have been simpler and the allegations of breach could hardly have been clearer. 
4.	The application had an initial return date of 8 March 2001. That hearing did not take place for reasons that need not be investigated and a later return date of 10 April 2001 was fixed. That hearing, likewise, was further adjourned, the mother neither attending nor being represented. 
5.	The next day set was 1 May. On that occasion the judge had a medical report concerning the mother who, again, was neither present nor represented. In the light of the report, the judge adjourned the matter generally with liberty to restore. That restoration took place on 13 August. The judge had before him not only the adjourned committal but also, seemingly, the father's petition for dissolution upon which the judge granted a decree nisi. That again was in the absence of the mother or any representative of the mother. The committal application was further adjourned to 2 October. 
6.	On 2 October the mother did attend and in a dramatic development collapsed at the court before the proceedings had travelled very far. She was attended by an ambulance team and ultimately admitted to hospital, whereupon arrangements were made between the lawyers, since on that occasion she was represented, for the father to pick up Nathan from school. 
7.	That permitted a meeting between father and Nathan which, on any objective view, was long overdue. Unfortunately the news of this arrangement led to the mother's immediate discharge from hospital and her visit to the father's house in an endeavour to resume her care of Nathan. 
8.	The judge made an order on 2 October which provided that, having heard counsel for the petitioner and the respondent, the committal be adjourned until 16 October as also should be the father's applications for directions as to contact and for a residence order. The judge specifically directed or ordered the mother's attendance on 16 October. By separate order, he adjourned her cross‑application to set aside the decree nisi to the same hearing. On 16 October the parties were again represented by counsel: Mrs Dent for the mother and Mr Hale for the father. The judge reached the case at about 11 and, in what was a sensible discussion with counsel alone, agreed to take the committal application first and only deal with the less pressing applications insofar as time allowed. The committal applications involved the judge hearing oral evidence from both parties and it was only towards the end of the day that he gave his extempore judgment. There was little time left for other business, but there was an extensive opportunity given to Mrs Dent to discuss developments with the mother in the light of the judge's findings that she was in breach of the order of 2 October 2000 and accordingly was to be sentenced for those contempts. What the judge sought to engineer was a sensible arrangement for contact to take place, observed and supervised by the senior Court Welfare Officer, before he had to make up his mind on the difficult issue of sentence. That contact duly took place on 19 November, two days before the date fixed by the judge for sentence. We have a report from the Children and Family Reporter, a Mr Walker, who stood in for his senior. The report shows that once Nathan was given mother's permission he related happily and easily to his father and indeed at the end of the period arranged said first: “I want to stay” and then later: “Can he come with us?” So it was against that background and with that information that the judge approached his sentencing task on 21 November. The course which he took was to sentence the mother to 7 days on each breach consecutive: 14 days in all, the sentence to stand suspended so long as the mother complied with a continuing contact order which the judge then spelt out with adjournment over to April 2002 of the applications that had not been determined on 16 August, namely the father's application for contact directions, his application for a residence order and the mother's cross‑application to set aside the decree nisi. 
9.	The mother exercised her right to appeal to this court by a notice dated 30 October. The appeal was duly listed in the President's court seven days ago when the mother appeared as a litigant in person whilst the father appeared to answer the appeal by Mr Hale. 
10.	The court ascertained that the Legal Services Commission had authorised the father to be represented by solicitors and counsel but had denied the mother representation. That state of affairs obviously caused the Court considerable anxiety and the appeal was stood out for seven days to allow the mother to obtain representation. 
11.	She has been represented by a number of firms: TV Edwards & Co and Miles & Partner, but following the adjournment seven days ago the mother has had the good fortune to obtain the services of Hodge Jones & Allen who have discharged their responsibilities to the highest standards by getting command of this complicated history and putting before the court a comprehensive and orderly bundle. They have also instructed Miss Mehendale, who appeared before the judge at the sentencing hearing on 21st and who has appeared before us today. She has laid the foundation for her oral submissions with a full and careful skeleton which we received last night and it can be said at once that nobody could have made more of what is an extremely difficult appeal than Miss Mehendale has done. She has thought of points which I doubt would have occurred to me had I had the task of presenting this appeal as an advocate and although, in the end, there is no substance in any of them, it is important that Mrs Gale should understand the conscientious and skilful professional services that she has received. 
12.	I will therefore now swiftly consider the grounds that have been advanced. The first ground was that the judge would have been wiser to have adjourned on 16 October. The short answer to that is he was not invited by Mrs Dent so to do. It is also submitted that there had been a time estimate of only half an hour for the applications adjourned to 16 October. There is no substantiation of that in the papers and, in any event, it seems to me quite irrelevant since, whatever the time estimate, the judge plainly devoted almost an entire court day to these disputes. 
13.	Then an attempt is made to advance a submission that the judge displayed actual bias against the mother. That submission is equally hopeless. The first suggestion from the mother that Judge Hornby should recuse came by a letter to the court handed in on 19 November on the eve of his sentencing. The submission is advanced that the judge displayed bias against the mother by making adverse findings in a judgment that he delivered in 1999 without having heard the mother in the witness‑box. But we looked at the chronology and found that the mother in fact walked out of the hearing part way through. In those circumstances no judge is to be criticised for drawing adverse inferences. If a litigant deliberately deprives him or herself of the opportunity of testifying, it does not seem to me that that litigant is in a position subsequently to found an appeal on the loss of opportunity to testify. 
14.	There is then some sort of suggestion of impropriety in that the first transcript of the extempore judgment was taken by the judge himself in manuscript from the tape. That submission shows a complete misunderstanding of the reality which is that this Court on the last occasion made a particular request for a transcript of the judgment and Judge Hornby, with quite exceptional diligence, undertook the task himself, giving up his lunch hour to do it, in the knowledge that unless he did it himself it was not going to be achieved within this court's timescale by a professional transcriber. 
15.	Then a submission is advanced that the judge should not have made any ruling, and certainly not a committal finding on 16 October, either since he should have transferred the matter to the High Court or since there was no representation for the child. Again, the short answer to another submission which is hopeless is that the judge was not asked to do those things and even if he had been asked it would have been entirely a matter for his discretion. Further a proper exercise of that discretion in all the circumstances would have been to have refused a transfer to the High Court. The Family Division is as heavily burdened as any of the London County Courts and it is very important that the demands of a particular case should not be elevated to the point of disadvantaging the court's capacity to deal with other cases which will be just as difficult and just as urgent. 
16.	As to representation of Nathan, the difficulties in securing representation for children in private law proceedings are now very widely recognised. Those difficulties have undoubtedly been accentuated by the creation of a new service and the letter from the Legal Director of the Special Unit to the judge in this case carefully and lucidly explains why this case did not meet the strict criteria for separate representation set out in the Practice Direction, reported at [2001] 2 FLR 151. 
17.	Then Miss Mehendale advances an ingenious submission that there was a breach of her client's rights under Article 6(2) of the Human Rights Convention because the summons that brought her to court did not sufficiently demonstrate that the burden of proof to a high standard lay on the applicant. Indeed the form seems in its general tone to carry the inference that the recipient was already in breach and the burden of proof was on her to show why she should not be imprisoned. I think there is some substance in the criticisms of this court form and I think that there is both an opportunity and a need for whoever is responsible for business in the County Court to reconsider the form of an application for committal for breach of previous orders. I think it would be much improved if the notes accompanying the form made it absolutely plain that the judge's first task is to evaluate the applicant's evidence of breach, only finding breach proved on the application of the criminal standard. The recipient of the form would then realise that it was only in that eventuality that he or she had to show good reason why he or she should not be at risk of imprisonment. But that said, this is only form and substance shows that at the hearing on 16 October the mother had every opportunity. First of all, the father was required to go into the witness‑box to prove his case on oath; then she had the opportunity to rebut that case on oath. It was only in a judgment explaining the judge's overwhelming preference of the father's evidence to the mother's evidence that findings of breach were made and the matter adjourned for sentence. So, whilst I think that there is a need to look again at the form that is in general use in the County Court, I do not think that there is in this instance any substance in the complaint. 
18.	Finally, it is said that the delay between the order of 2 October 2000 and the hearing on 16 October 2001 should have borne on either the judge's decision to deal with the matter or, alternatively, to have borne on sentence. The judge had by 16 October evidence of the meeting between the father and Nathan that had taken place on 2 October and he was, in my judgment, not only perfectly entitled, but perfectly right to move the case on. I cannot see that there can be the least criticism of the sentence for which he elected. He explained his reasoning carefully and his decision can be seen to be but a stage in a management of a difficult case that has a great deal to commend it. His seizure of the opportunity on 16 October to set up a meeting between father and child in advance of sentencing was shrewd and productive. His subsequent decision to suspend a sentence to buttress an arrangement for continuing contact equally seems to me to be a shrewd endeavour to restore this very important relationship between father and child. Far from there being the smallest flaws in the orders below or in the judgments below, I would go so far as to say that this judge dealt with this case in a sensitive, humane way, never losing sight of his primary task which is to seek to restore a relationship between a father and child, absent some impassable obstacle. 
19.	I would only close by repeating what Miss Mehendale has recognised to be the reality, which is that if the mother does not comply with the contact regime laid down by the judge on 21 November her real penalty will not be a period of 14 days in prison, but will be the loss of the responsibility for the primary care of this child. 
20.	For all those reasons, perhaps too extensively stated, I would dismiss this appeal. 
21.	LORD JUSTICE LAWS: I agree that this appeal should be dismissed for all the reasons given by my Lord. I would, with respect, like to emphasise my agreement also with what my Lord has said as to the deficiencies in the form of the notice of application for committal. 
Order: Appeal dismissed; detailed assessment of both party's costs.