No B1/2002/0979
Neutral Citation Number: [2002] EWCA Civ 814
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL AND A STAY OF EXECUTION

								Royal Courts of Justice
								Strand
								London WC2

								Monday, 13th May 2002

B e f o r e:

LORD JUSTICE THORPE

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W (a child)

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040
Official Shorthand Writers to the Court)

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MR ALAN LEVY QC and MR SIMON O'TOOLE (Instructed by Passmore's of Colchester) appeared on behalf of the Applicant

The Respondent was not represented and did not attend

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J U D G M E N T
1.	LORD JUSTICE THORPE: Mr Levy applies for permission to appeal an order made by His Honour Judge Brandt on 3rd May transferring to the applicant father the care of the only child of his relationship with the respondent mother, who is E, born in October 1997. The judge said that E should make this move at 4 pm on 10th May.
2.	An application was received in this court on the eve of the transfer, 9th May, seeking permission to appeal and a stay of execution. The application for a stay of execution was refused on that same day, but the application for permission was granted, an oral hearing without notice on 13th May with a time estimate of half-an-hour. There seems to have been some confusion, wilful or otherwise, as to the effect of the order since E did not go to her father as she should have done at 4 pm on 10th May. Mr Levy was unaware of the fact that the application for a stay had been refused on the day that it was made. He thought that that application was before the court this morning.
3.	Mr Levy has addressed us only on the application for permission. He has said everything that could be said in support of the application. I will not recite his complaints, but I think it is necessary to say that any complaint in respect of the order made on 3rd May must be judged in the context of the prior hearings before this same judge both on 28th February and also on 16th April. It is notable that neither of those previous orders has been challenged. The first order set up a clear regime for contact which has been deliberately disobeyed by the respondent mother. The order of 16th April set up a trial of the father's adjourned application for residence on statements that were to be filed respectively on 26th April and 1st May, and no other evidence was ordered.
4.	Mr Levy has made criticisms of the judge which certainly merit some further investigation. He says that the judge misdirected himself in criticising the mother's pattern of deciding subjectively whether her older children should or should not go to school and, apparently, intending the same approach for E when she reached school age. Mr Levy has produced this morning a letter from the education authority addressed to the mother which was apparently not before the judge. Mr Levy also criticises the judge in that he nowhere refers to the fact that E has never met Mrs Cox or Mrs Cox's two teenage sons, when the effect of the judge's order will be to constitute Mrs Cox as, perhaps, the primary carer. So, on the one hand, there is what Mr Levy stresses as a draconian order against the fact that the judge had given this mother the clearest warning that if she persisted in her subjective interpretation of what was best for E the court would intervene.
5.	The determination of this morning's application, in my view, hangs on a knife edge. My ultimate choice, not without a good deal of hesitation, is to grant Mr Levy another hearing but this time on notice. If, at the adjourned hearing, the court is persuaded to grant permission then the appeal will be immediately determined. The case will be listed this week on 15th May, and we would expect to have a transcript of the judge's judgment before us, hopefully by 4 pm on 14th May.
Order: Application adjourned