NO B1/2000/3673

Neutral Citation Number: [2001] EWCA Civ 863
IN THE SUPREME COURT OF JUDICATURE                
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE McDOWELL
WANDSWORTH COUNTY COURT

                                    Royal Courts of Justice
                                    Strand
                                    London WC2
 
                                  Tuesday 15th May 2000

B e f o r e :

LADY JUSTICE HALE

- - - - - - - -

IN THE MATTER OF S (CHILDREN)

- - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7421 4040
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - -

The Applicant appeared in person

- - - - - - - -
J U D G M E N T
1.	MRS JUSTICE HALE: This is a father's application for permission to appeal against an order made by His Honour Judge McDowell in the Wandsworth County Court on 1st November 2000. There is a long history to these proceedings. They concern two boys, H, who was born on 3rd February 1991 and is now 10, and G, born on 8th May 1993, who is now eight. The parents were not married to one another. Their relationship broke down it appears in 1994 but the father stayed living under the same roof as the mother and the boys until May 1997 and remained a frequent visitor until November 1997.
2.	The proceedings began in April 1998 when the father applied to restrain the mother from removing the children from the country. The father is Canadian. The mother it appears has dual nationality and it appears that the boys are also Canadian. The father then applied for contact, parental responsibility and residence orders. There was a court welfare officer's report on 30th July 1998, supplemented by a further report on 29th January 1999. That found nothing to support the father's allegations that the children were not being properly cared for by their mother. There was a torrent of allegations against the father by the children themselves and it was clear that although the younger boy had at first been prepared to see his father, both now did not want to do so. The children were also receiving counselling from the local child and family consultation service.
3.	The father's applications came before His Honour Judge Rose on 15th February 1999. There was a full hearing over a whole day. He heard evidence from the court welfare officer and from both parents. The father was then acting in person but the mother was represented. He dismissed the father's applications for parental responsibility and a residence order. He prohibited the father from making applications for parental responsibility or a residence order without leave of the court for two years ‑ that is until 1st March 2001. His reasons for doing so are expressed in this way, at page 19 of his judgment:
“I am quite certain, looking at the history of this matter, the nature and the extent of the allegations, and the frequency of the allegations that have been made, that the welfare of these children is being threatened and indeed harmed by the continual uncertainty as to the stability of the relationship and the extent of the relationship with their father...
The father has actually... sought to undertake to me, as I have said, not to make any applications at all. I do not think that is right. I think, however genuine the zeal with which he expressed his view in an undertaking a few moments ago, he would regret it if he was bound by it. So even those which he admits, I am of the view that it would be inappropriate. I am going to make an order that he be de‑barred from making any application for parental responsibility, or for residence, without leave of this court, until 1st March 2001, which is a two year period.”
4.	So far as contact was concerned, the judge made an order for indirect contact but for no direct contact until further notice. He also prohibited the father from making an application for contact without leave of the court for 14 months ‑ that is until 1st April 2000. His reasons for that at page 20 of his judgment were:
“It seems to me that these children should enjoy a period of stability, but also I do not think that this period should be open‑ended because there is always the fear ‑ and I think it is a reasonable fear in the mind of the father ‑ that if the matter proceeds unchecked then he will never see his children again and that there will never be any real attempt in order to induce them into accepting to see him.” 
5.	After 1st April 2000 the father made an application for contact and for disclosure of the children's counselling records. This came before His Honour Judge Winstanley in the Wandsworth County Court on 8th June 2000. He did not have a copy of His Honour Judge Rose's judgment but he did have the court welfare officer's report of January 1999. His Honour Judge Winstanley looked for reason to believe that things had changed. He found none. He said in his judgment:
“I am afraid that this material on its face reveals to me a seriously unbalanced approach to these applications and to these proceedings, and to what is in the best interests of the children. I am quite convinced that, to allow these applications to proceed beyond today, would only have a de‑stabilising effect on these children. It would be harmful to their welfare. What has benefited them? I am told that they are making progress at school in the absence of these applications from [the father], and what they need is a further rest from these applications.” 
6.	He therefore dismissed the applications but he went on to make an order that the children were to live with their mother, which had not been made before, and he made a fresh order de‑barring the father from making any application within Children Act proceedings without the leave of the court until 7th June 2002. He did however say that if the matter came to the Court of Appeal there should be a copy of His Honour Judge Rose's judgment.
7.	The father applied to the Court of Appeal for permission to appeal. This came before Lord Justice Thorpe on 3rd October 2000. Lord Justice Thorpe pointed out that the father's witness statement contained nothing of relevance to the children. It was more a record of his dissatisfaction with proceedings in the Wandsworth County Court about the children and the Bromley County Court about the chattels. There was still no transcript of His Honour Judge Rose's judgment. Nevertheless, Lord Justice Thorpe held, in the light of the way in which the father had approached the matter, that it was open to His Honour Judge Winstanley to deal with the case as he did. It was within the wide discretion afforded to a trial judge in these circumstances and was not appealable. 
8.	Accordingly on 29th October 2000 the father made an application to the Wandsworth County Court. This was not on the usual Children Act form and therefore it will not have been immediately apparent what was being asked for. He asked for, first, an order that the transcripts of Judge Rose's reasons of 15th February 1999 and of 12th May 1999 (in which Judge Rose had refused permission to appeal against his order of February); secondly, an order to transfer the case to Bromley County Court or to the Principal Registry; and thirdly, permission to apply.
9.	On 1st November 2000 His Honour Judge McDowell refused those applications without a hearing. His reasons for doing so are set out in a letter from the court of the same date and apart from the first sentence they are also recorded on the face of the order:
“The application is misconceived: the Court of Appeal refused to grant permission to appeal Circuit Judge Winstanley's order of 8th June 2000, without requiring sight of the 1999 judgments, and in consequence Mr S cannot commence Children Act proceedings before 7th June 2002 without court permission. No reason is given for seeking to make an application less than six months after the last attempt, and this application is therefore refused; questions of transfer do not arise.” 
10.	Mr S's applications for permission to appeal and an extension of time in which to appeal against this order are dated 8th December 2000. The deputy master of this court ordered a transcript of the judgment of 15th February 1999 but this was not available when the matter was first listed on 8th April 2001. It is now available.
11.	The father wants now a full hearing and a transfer to a court with better access for the physically disabled than there is at Wandsworth. His grounds are basically that he was refused a hearing, he has been denied his right to family life, he has been denied a fair trial and he has been discriminated against, as I understand it, as a person with a disability.
12.	The difficulty faced by His Honour Judge McDowell was, as is stated in the reasons for his order, that no relevant reasons had been given by the father for wanting the court's leave to make an application for contact with his children so soon after his last attempt. His documents always appear to concentrate on matters which are not relevant to the welfare of his children and are not aimed at indicating how it would now be in their best interests and in no way de‑stabalising to their care and their upbringing for him to be allowed to make that application. Those are the things in which the court will be interested.
13.	The matter of the transcript has now been cured and it is clear from the passages that I have cited that, although His Honour Judge Rose made very clear findings about the reasons behind the orders that he made, he did not contemplate shutting out the father for all time from contact with his children. In those circumstances the most sensible course for the father is to make a new application on the correct form for leave to make an application for an order for contact with his children. That should be supported by a witness statement which is relevant to the issues with which the court will be concerned ‑ that is the welfare of his children and their security. It ought to be made to the Wandsworth County Court in the first instance and it would clearly be desirable if possible for it to come before His Honour Judge Rose who has had the benefit of hearing evidence from each of the parties in the past. It would then be open for the court to decide whether enough time had gone by, and whether the father had displayed more understanding of his children's needs, to justify the further disruption involved in court proceedings.
14.	It is not for me to give the father legal advice, but clearly he should understand that it is necessary for him to think carefully about his children's best interests and to concentrate upon what really matters to them rather than irrelevant past history. Hence, His Honour Judge McDowell was right in part to say that this application was misconceived and it was within his discretion on the basis of the material before him to refuse the application for leave. Nevertheless, as I have said, it is open to the father to present a fresh application and he should do it with the benefit of a statement from himself, annexed to that a copy of the judgment of His Honour Judge Rose and of this judgment.
15.	I would therefore refuse his application for permission to appeal but order that there be a transcript of this judgment supplied to him at public expense.