B4/2005/0051; B4/2005/0052 
Neutral Citation Number: [2005] EWCA Civ 486
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM SOUTHEND COUNTY COURT
(HIS HONOUR JUDGE YELTON)
Royal Courts of Justice 
Strand 
London, WC2 

Wednesday, 16 March 2005
 
B E F O R E:

LORD JUSTICE THORPE

LORD JUSTICE HOOPER 

 
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W (CHILDREN)
WR CHILDREN 

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MISS REBECCA DEGEL (instructed by TMK Solicitors, Southend) appeared on behalf of the Appellant
MR DAMIAN GARRIDO (instructed by Cooper Lingard, Leigh-on-Sea) appeared on behalf of the Respondent
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J U D G M E N T
Wednesday, 16 March 2005
1.	LORD JUSTICE THORPE:  Mrs Degel advances permission applications on behalf of Mr W at this oral hearing which was directed by Wall LJ on 1 February 2005.  The judge in his written reasons noted that the path for the father was difficult in that he was not seeking to upset the joint residence order itself, only the discretionary division of time which the judge had imposed.  He continued that there might be sufficient, given the relationship between L and her mother, to persuade the full court that permission should be granted.  He said that the financial order and the order for costs were discretionary exercises, but it would be sensible for the court to consider them on the same basis as the order relating to the children.
2.	He noted that criticisms had been advanced in the grounds of appeal of the judge's conduct.  Accordingly, he directed that the judge's attention be drawn to paragraphs 4 and 5 of the grounds relating to the Children Act proceedings and paragraph 3(b) of the grounds relating to the financial order, and to invite the judge's comments.
3.	In the grounds of appeal in paragraphs 4 and 5 the argument was advanced that the judge had been guilty of serious procedural errors in his handling of the CAFCASS officer's contribution and that, further, he was guilty of an irregularity in that he had interrupted the father whilst giving evidence of an incident concerning a holiday that mother and one child were about to take, and had referred to the father as a stupid man.  The grounds continued:  
"The tenor of this inappropriate comment was such that the Appellant doubted the impartiality of the Learned Judge and considered that he had prejudged the case." 
4.	In paragraph 3(b), the grounds relating to money, it was said that the judge had been guided by the order drawn by District Judge Dudley following the financial dispute resolution hearing on 8 December.  It was said that the judge was wrong to have taken account of that comment.  The order of the district judge conducting the FDR hearing was unusual, in that paragraph 1 reads:  
"It is recorded that the respondent husband has obstructed the purpose of this Financial Dispute Resolution."   
5.	I will first of all consider the criticisms made by Mrs Degel of the order made by the judge in relation to the children.  The judge effectively made a joint residence order in relation to both L, who was who was born in September 1993, and S, who was born in October 1999.  
6.	There had been a great deal of trouble and acrimony between the parents which had resulted in the sad development that L had become estranged from her mother and was not only expressing a strong preference to live with her father, but was reluctant to have any contact with her mother.
7.	The judge heard first from the CAFCASS officer, Mrs Burr, and then from the parties; and at the end delivered a judgment in which he allocated the children's time between the two parents in a way that had not been contemplated by the court welfare officer and in a way that neither parent had contended for.  Mrs Degel's complaint is that if the judge was going to go off on such an independent line he had an obligation to put that to both the CAFCASS officer and to the parties.  That submission is an orthodox submission and I do not disrespect it.  
8.	On the other hand this is an unusual situation in which the adjudication was very much on a point of detail as to the sharing under the umbrella of the joint residence order, and the judge must have, at some level, recognised that in the end it was open to the parents to agree, as it were posthumously, a division other than that imposed by the judge.  It would have necessitated bringing the court welfare officer back to court were the judge to go through the strict formality of seeking her view on this independent approach.  The judge has said - and this commands my respect - that the solution that he expressed in the order was one that only occurred to him as the best outcome for the children at a comparatively late stage in his thinking process.  Furthermore, we have been told that the parties have since 15 December arrived at an extremely sensible agreement to vary by consent the judge's proposal that L should be with her mother every Wednesday after school and on alternate weekends, together with half the school holidays.  In reality since the judge made the order L has only seen her mother on two occasions when taken by her father.  The impossibility of strict implementation of the judge's order is obvious; and the agreement between the parents is that Louisa will remain with her father and will develop her relationship with her mother at times and in ways to be agreed between the parents, including L in their deliberations.  That is an extremely promising preparation for family therapy which is at least underway to the extent that, on 18 January, L was assessed at the local resource in Southend and apparently the decision of the assessor was that any therapy must include the family rather than individual therapy.  So that is a very important opportunity for this family; and I cannot too strongly urge upon the parents the wisdom of investing heavily in the process for the sake of the children above all and in recognition that the future well being of the children depends crucially on the parents repairing their personal relationship and demonstrating to the children that they can still collaborate between each other as parents despite the fact that they cannot cohabit as spouses.  
9.	So all that remains is the question of the variation of the order in relation to S.  Some variation is inevitable since, as my Lord has pointed out, the order in relation to S contemplates her being with her father on the mid-week day when L is with her mother.  Since L is not seeing her mother mid-week some variation is required in relation to S.  
10.	It plainly is not appropriate for this court to embark upon what is essentially variation to reflect change of circumstances.  I conclude that it cannot be said that the order of the judge was plainly wrong on 15 December.  He clearly had an optimistic belief that the arrangements that he was introducing might work.  The fact that it has not worked is not an indication that it was fundamentally misconceived.  I have, during the course of argument, urged the parties to achieve that relatively slender variation in relation to S by agreement rather than by a further application to the county court.  This family has already incurred quite substantial legal costs in litigating.  Inevitably adversarial litigation only deepens the discord and emotional disharmony between them.  There must be very experienced expert mediation services in their area.  Mrs Burr might well be prepared to help for the sake of the children.  There is always the Court of Appeal mediation scheme, should the parties wish to access it.  But I am quite clear as a matter of principle that there is no role for the Court of Appeal in relation to the order which appears at page 94 in the bundle.   
11.	I turn now to the question of money.  The crucial decision of the judge was not to ensure that each of the parents kept the homes that they were independently occupying, but the further decision that the mother should receive £1,000 a month by way of periodical payments.  Mrs Degel in her able submissions has criticised that order on four grounds.  She says first that the judge failed to take account of the fact that both parents have significant earning capacities and both have the same obligation to maintain their children.  Secondly, she says that the effect of the order is to make the incomes coming into each household more or less equal without recognising the considerable inequality of the outgoings.  Thirdly, she says that if the father is left with his appreciation of a fundamentally unfair order it will inevitably prejudice the vital repair work within the family's function and emotions.  Perhaps her fourth point is the perception of bias point which is expressed in the comment complained of in paragraph 5 of the grounds and also in the complaint in relation to the order of the district judge of 8 December.   
12.	The periodical payments order at £12,000 a year to the mother alone, on its face, does seem to be an order at the top end of the sustainable bracket.  On the other hand it is clear that in making the order the judge intended it to be for the benefit of the mother and S, and he intended it on the basis that the mother's relationship with L would be gradually repaired and time spent between them extended.  Mrs Degel accepts that it would have been open to her to ask the judge to record that he made that award on the basis that the wife would not seek a Child Support Agency assessment in relation to S.  That can still be achieved by amendment of the order of 15 December, if that additional protection is thought necessary.  
13.	The suggestion that the judge failed to take account of the fact that both had earning capacities simply will not run on the judgment.  The judge said specifically, at paragraph 42: 
"The wife is not working and has not worked for some years.  Undoubtedly she has an earning capacity, although the suggestion that she return to nursing (which she gave up because she did not like it, many years ago) seemed to me to be unrealistic.  I am sure she could work part time as a secretary and I expect she will do so in due course.  
43. The wife says that she feels that at present S needs her not to work, and that is what the parties agreed when she was born.  I place less store on the latter point, as circumstances have now changed so radically, but I have to take into account as the first consideration in deciding the application the welfare of any minor child of the family...  I have also had in mind all the other factors..."  
So the basis of the judge's award was that the mother was needed in the home and, as he said in paragraph 44:  
"... I have come to the clear conclusion that it is in the interests of S that for the time being the mother does not work, despite her earning capacity.  The child needs as much attention as she can be given after what she has gone through."  
Those findings and conclusions are simply unappealable.  The suggestion that the judge has not taken account of the outgoings in each household is, I think, negated by this very short clear finding at paragraph 41:  
"The husband earns £44000-odd gross, £32000 net.  His basic outgoings are about £18000 per annum."  
That, of course, suggests that, despite the level of his basic outgoings, the order that was imposed by the judge was one that he could afford.  
14.	Mrs Degel's third and fourth points do, to some extent, merge.  There is no doubt at all that the judge reacted at one or two points within the trial in a way that he might not have done had he had more reflection time.  In response to the direction of Wall LJ, the judge has written to the court saying that he accepts he had called the father a stupid man.  He continues:  
"That was an unjudicial comment to make and should not have been said.  However, the father's attitude was that he appeared to have no appreciation of the effect of his actions on S and while the remark could have been phrased more delicately, it represented an immediate response to his account of what I describe in [the judgment] as 'an appalling incident', a description by which I stand."  
So the judge's acknowledgment that his reaction was essentially an emotional one is there for the applicant's comfort and, overall, cannot possibly be said to be indicative of either prejudice or prejudgment.  
15.	Mrs Degel has also complained of the judge's reaction to a submission that she made after the judgment had been handed down to the effect that her client's job was stressful.  Again the judge's reaction and his words may have been too swift, but I cannot, given the fact that the exchange came after hand down, see that it begins to support the assertions in paragraphs 3 and 4 of the grounds.  
16.	I will briefly deal with the complaint about the order of District Judge Dudley.  It is unusual for a district judge to record on the face of the order any criticism or condemnation of a party to an FDR appointment.  The words of the paragraph read: 
"It is recorded that the respondent husband has obstructed the purpose of this Financial Dispute Resolution."  
This court knows no more than that.  Neither of the advocates appearing before us today attended on the 8th, nor either of the solicitors in our court.  It seems that the district judge did explain briefly what lay behind his record, but we have only the impression that he regarded the husband's refusal to negotiate any form of periodical payments order other than a nominal order as obstructive in all the circumstances of the case.  
17.	There is no substantiation of the suggestion that Judge Yelton factored this record into his discretionary determination of the ancillary relief application.  It seems to me that the question of whether a judge conducting a FDR hearing may or may not seek to record obstruction or any other misconduct on the part of one of the parties is a novel question and one that has wider implications to all forms of alternative dispute resolution.  But I certainly am not prepared to conclude on such argument as we have received in the present application that it was improper for the district judge to make the record that he did and, once recorded, it is inevitable that it will be within the domain of the subsequent trial and the weight to be attached to it is bound to depend entirely on the facts and circumstances of the individual case.  But I am not persuaded that paragraph 1 of the order of 8 December has had any measurable impact on the outcome of the subsequent trial or that the judge has placed improper weight upon it.
18.	Mrs Degel has also sought to suggest that the judge's costs order is unprincipled.  He had before him a Form H dated 9 December which puts the wife's ancillary relief costs for publicly-funded services at the figure of £8,607.75.  The judge's award was £4,000.  The discretion of the judge in the field of costs is particularly wide at the present time when the Rule and the authorities in relation to costs are the subject of a public consultation exercise conducted by the DCA.  The judge's allocation to the wife of 50 per cent of her costs is simply not open to question; given that she had had to come to trial; given that the husband's two Calderbank offers, of 11 June and 28 October respectively, fell appreciably below what the judge ordered; and given that the wife's counter-proposals of 6 December precisely matched the judge's ultimate award.  
19.	Mrs Degel has sought to suggest that for some reason the wife's award should be limited to costs incurred after receipt of her successful Calderbank letter.  That submission is quite unprincipled.  The suggestion that the judge arrived at an unsustainable conclusion is plainly hopeless.  So I would not grant permission to appeal on any one of the three heads urged.  
20.	However, I would just say in closing that I understand why the husband has sought an appellate review.  The judge's solution to the considerable problems presented by Louisa's estrangement from her mother was one that I well understand he would regard as inappropriately dismissive of what the parties themselves had conceived.  The periodical payments order is unquestionably at or towards the top end of the bracket, and the judge was perhaps liberal to the applicant in not setting a date by which the dormant earning capacity had to be reactivated, given that it was only the immediate needs of S that kept her from the workplace.  However, those considerations do not in themselves unlock the door to an appeal.  The family - and particularly the adult members - have experienced a great deal of emotional hurt as a consequence of the breakdown of their marriage. They will each of them have to be magnanimous and sensitive in their relationship in the months ahead, and it would be unfortunate if the failure of these applications to this court were to jeopardise the process of repair that is so badly needed.  I only add these words to ensure that at least the applicant will know that the court has appreciated that the order imposed upon him is not an easy order, but that does not mean that it is either an unjust order or an appealable order.  
21.	LORD JUSTICE HOOPER:  I agree.  
 (Appeal dismissed; Appellant do pay Respondent's costs, such costs to be assessed).