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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 (Children), Re [2002] EWCA Civ 881 (13 June 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/881.html Cite as: [2002] EWCA Civ 881

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WILLESDEN COUNTY COURT
(Mr Recorder Rex Bryan)

		Royal Courts of Justice Strand London WC2 Thursday, 13th June 2002

1. LORD JUSTICE WARD: This matter has come before us in an unfortunate manner. Lord Justice Thorpe, considering matters on the papers and dealing with an application for a stay of the execution of the order of Mr Recorder Bryan made on 18th February 2002, put a stay upon that order, which had directed that father should have supervised contact to the two children of this family every two months. But Lord Justice Thorpe also directed that the matter be listed on notice to the respondent for the hearing of an application for permission to appeal, and only for that to be considered. The time estimate of an hour was given for that purpose.
2. Subsequently, however, arrangements were made for the matter to be listed with the appeal to follow if permission was granted, with half a day allowed for that hearing. That would have been a tight estimate, given the volume of closely typed documentation which is in the bundle - particularly the reports of the contact centre which has been supervising this contact and which would continue to supervise it under the judge's order. The judge relied heavily upon that material in coming to his decision. I have confessed that I have only dipped into that material and have not considered it in great detail, being of the mistaken impression that all that was before the court was the application for permission to appeal.
3. In my judgment there is an arguable case for granting permission and I need not say more than that the grounds in the notice of appeal, as amplified by the skeleton argument, do raise a real prospect of success within the meaning those words have for CPR 52 purposes. That is not to say, I hasten to add, that the appeal is free from difficulty. It is a difficult case and it needs careful consideration by this court. I am far from happy that only half a day has been allowed, given the volume of evidence which may need to be carefully looked at; but, with a great deal of pre-reading of the material, which I have simply not had the time to do, that estimate might be sufficient.
4. When those difficulties were raised with the parties Miss Villarosa was concerned that the effect of granting permission to appeal would automatically result in the stay being continued and the delay being increased. Her client is, not surprisingly, unhappy that he is to be denied contact to his children for longer. However, she was more unhappy that the court would not have a full opportunity to consider material evidence.
5. Given her embarrassment, it seems to me that it would be wrong in this case to try and curtail the argument and do justice to the case in the limited time we now have available. I am very conscious that the mother may be incurring costs to the Legal Services Commission which are charged against her home. That is most unfortunate. But I think it would be more unfortunate for the children if their father, who has quite serious psychological problems, should have a burning sense of injustice about the findings of this court. It is, I think, more important in their interests that justice be seen fully to be done rather than that justice be rushed. Sadly, if that is at the expense of eating into the equity of the matrimonial home, then, regrettable though that is, I am afraid it has to give way to the interests of a fair trial.
6. I do hope that the father is listening carefully to those words and I do hope that they will be emphasised to him when this judgment is being considered. We are anxious to do justice to his case, but he has to realise that he has serious difficulties with which he has to grapple and that that is a not unimportant feature in this appeal.
7. Reluctantly, therefore, I am driven to the conclusion that we must adjourn the hearing of this appeal, which I will direct should be expedited, with a time estimate more satisfactorily of a day. Although it is not essential, it would perhaps be desirable to have a court of three rather than two to hear it. I would stand it over for that purpose, giving permission to appeal but continuing the stay of execution of the recorder's order until the determination of that appeal.
8. There is one further matter which should be dealt with by this court immediately. These children, and the elder girl in particular, appear to be in need of some psychiatric and psychotherapeutic help. The clinic who are willing to treat them would wish to see especially the report of Dr Dora Black, a consultant psychiatrist. The father took some objection to that being disclosed on two grounds, as I understand it: first, that it contained some reference to violence, which is contrary to the mother's own case and contrary to the findings of the recorder; secondly, because if the clinic are to see anything, they should see everything. There is force in both those points. I would be disposed to direct that permission be given to disclose all the papers in this case to the clinic, it being made clear to the clinic that it is common ground that this father has not used actual violence towards the mother during the course of the marriage or even in the aftermath of its breakdown. That will enable the therapy to begin, as I hope it will.
9. So with that added direction, the matter must, sadly, be adjourned.
Order: permission to appeal granted and matter adjourned; appeal to be expedited (preferably with 3-judge court and one day time estimate); stay continued until determination of appeal; permission granted for all papers in case to be disclosed to clinic; transcript of evidence of Nancy Assimaki to be obtained by respondent if so advised; costs reserved.