NO:  B1/2001/0400

Neutral Citation Number: [2001] EWCA Civ 480
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHESTER COUNTY COURT
(HIS HONOUR JUDGE D HALBERT)
 
                                  Royal Courts of Justice  
                                  Strand    
                                  London WC2
 
                             Wednesday, 21st February 2001
B e f o r e :

LORD JUSTICE THORPE

and

LADY JUSTICE HALE

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IN THE MATTER OF
M (Children)

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0171‑421 4040 Fax No: 0171‑831 8838
(Official Shorthand Writers to the Court)
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MRS JANET CASE (instructed by Stephen Mullarkey, 73A High Street, Holywell, Flintshire CH8 7TF) appeared on behalf of the Applicant
MR STEPHEN REDFORD (instructed by 46‑48 Chester Road, Shotton, Deeside C15 1BY) appeared on behalf of the Respondent

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J U D G M E N T
Wednesday, 21st February 2001
1.	LORD JUSTICE THORPE: This is an application for permission adjourned with appeal to follow if permission granted. This is an appeal on behalf of the mother, Mrs M, who seeks to challenge an order made by His Honour Judge Halbert in the Chester County Court. The order was made on 1st February and the only paragraph that is under review is paragraph 6, which reads:
“In the interim there shall be three periods of supervised observed contact between the applicant father and the five children. Such contact to be arranged by Mr Prout who shall have discretion to curtail or cancel any contact arrangements in relation to any or all of the children if he considers it necessary to do so in the interests of the child or children concerned.” 
2.	In her paper application to the Court, Mrs Case certainly gave me the impression that this was an order made prematurely and an order that risked to pre‑judge the issues that were going to be determined at a fuller hearing fixed to take place on 9th April before His Honour Judge Elyston Morgan. Her paper application further suggested that the order had been made against the advice of Mr Prout and that the judge had failed to give a reasoned judgment and failed to explain why it was that he rejected the advice of Mr Prout. At that stage, looking only at the papers, it seemed an application that would in all probability be granted and would have real prospects of developing into a successful appeal.
3.	But in the interim we have had the transcript and we must be grateful to the transcribers who have managed to get out at short notice a full transcript of the proceedings on that day running to some 41 pages. The transcript demonstrates that the picture painted by Mrs Case in her written approach to the Court bears little, if any, relationship to the reality disclosed by the transcript. The transcript shows that the judge at a relatively early stage rightly perceived that if Mrs Case was to rely belatedly upon allegations of sexual abuse by the father, there would have to be a trial of the allegation to provide the father with the fair opportunity of answering the allegation and at least receiving a judicial determination one way or the other.
4.	Obviously, if the judge dismissed the allegation, then that was not likely to figure in the determination of the father's application for direct contact. On the contrary, if he found that there was substance in the allegation, that would be something of very great influence on the outcome on the contact application. He very sensibly adjourned at once to ascertain the availability of a judge experienced in public law work, and thus it was that he was able to arrange the hearing before Judge Elyston Morgan. He then proceeded only to test with counsel the directions that should sensibly be made to cover the interim, and it was during the course of that collaborative exercise that he came to consider whether in the interim there should be any contact against an application by Mr Redford (for the father) that there should be fortnightly supervised contact in the interim. The judge expressed a provisional view that it would be helpful for the purposes of assessment to have some observed contact between 1st February and 9th April for the guidance of Judge Elyston Morgan at the main hearing. He made it absolutely plain that once a fortnight went way beyond anything necessary for assessment and he came quite quickly to the provisional view that three observed meetings would meet the bill.
5.	It is plain from the transcript that Mrs Case was fully involved in the development of the judicial thinking. It is plain that she had every opportunity to object, root and branch. It is plain that she effectively consented to the middle ground position adopted by the judge. It is then plain that the judge, perhaps for his own reassurance, called the Court Welfare Officer, Mr Prout, back to the witness box and tested with him whether he had any objection to the course that the judge had preliminarily adopted. Mr Prout's answers make it claim that he was quite prepared to carry out the task that the judge was requesting.
6.	The transcript simply demonstrates that this is a hopeless application. Mrs Case has very wisely and graciously accepted that reality, and it is plain that the application should be dismissed.
7.	LADY JUSTICE HALE: I agree. There clearly was a strong argument to be made that if there was to be a trial of whether sexual abuse of the older girls had taken place, and particularly if there was any chance that they would be she were called to give evidence, it might be dangerous to re‑introduce contact between them and their father before that hearing. I, for my part, cannot agree with the judge's observation that he was less concerned about the effect on the evidence because he thought that if the evidence was true it was likely to be maintained. Experience indicates that allegations such as this may very well be accurate but withdrawn under circumstances such as this – I do not know, of course, about this particular case. But that argument was not pursued either by very experienced counsel representing the mother or, indeed, by the social worker who was recalled to give evidence. The judge was careful to ensure that the social worker would be able to bring contact to an end, or indeed not to arrange it, if it was not in the interests of any of the children involved, and that would clearly involve any indication of improper pressure being put on the girls by the father.
8.	I do, however, very much agree with the judge's observation later in the transcript that a system ought to be evolved in the courts in question “whereby the same judge deals on an ongoing basis with any one case.” This particular case has been going on for a very long time. The girls have not seen their father for nearly two years now. They have in the past expressed a desire to do so provided that the circumstances can be safe. Clearly nobody has taken this case by the scruff of the neck and worked out whether or not the allegations of sexual abuse should be further investigated for the purposes of the contact proceedings. It should have been sorted out at a much earlier stage of the proceedings than this. But those are merely additional observations. Mrs Case has accepted that this application should not be pursued.
(Application dismissed; legal aid assessment)