Case No: B4/2008/1143
Neutral Citation Number: [2008] EWCA Civ 1098
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM GLOUCESTER COUNTY COURT 
(MS RECORDER SEARLE)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 30th September 2008

Before:

(LORD JUSTICE WALL)
- - - - - - - - - - - - - - - - - - - - -

IN THE MATTER OF D (A Child)

- - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -

THE APPLICANT FATHER APPEARED IN PERSON.
THE RESPONDENT MOTHER DID NOT APPEAR AND WAS NOT REPRESENTED.

- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Wall:

1.	These proceedings concern a little girl called E-S, born on 17 July 2005, so she is a little over three.  Proceedings in this court began as an application by E-S’s father for permission to appeal against an order made by Ms Recorder Searle, sitting in the Gloucester County Court on 24 April.  The order made by the recorder was to refuse (the applicant father) Mr D’s application for a stay of a previous order made by Mr Recorder Weintraub relating to E-S. That order had been made on 26 September 2007.  
2.	The essential background to the matter -  and I am proposing to state this very shortly indeed -  is that on 7 February 2007 DJ Thomas  made a shared residence order in relation to the little girl and that order was initially sustained for some time.  As I understand it, the parties were effectively living in the same accommodation.  However, on 15 May 2007 or thereabouts there was what has become known as a fact-finding hearing before Mr Recorder Weintraub. He gave a judgment which Ms Recorder Searle describes as being some 32 pages long, but which unfortunately I do not have.  
3.	On that occasion,  the recorder did not alter the shared residence arrangements although he plainly envisaged that he would do so by virtue of the findings he must have made, because on 26 September 2007, when both parties were represented, the matter came before him again and, in a judgment which I do have, he made orders which effectively set aside the shared residence order aside and granted the father  limited contact with the child -  certainly, contact which was  severely limited compared with what he had enjoyed previously.
4.	  There is a suggestion in the papers that there was a subsequent review of those arrangements -- but Mr D denies that occurred -- in April 2008, with the result that the first application for permission to appeal which Mr. D made related to the order made by Recorder Searle for a stay.  When the matter came before me first of all on 14 August, it occurred to me at once that, really, the recorder, Ms Recorder Searle, was only doing what she had to do -- it was inevitable that she would refuse to stay the order; she really had no choice -- and that really what needed to happen was that Mr D needed to appeal against the order of the recorder, Mr Recorder Weintraub, dated 26 September 2007.  
5.	On  14 August, however, I did not have a transcript of the recorder’s judgment given on 26 September 2007, and so what I did was to give Mr D permission to file an appellant’s notice out of time against the order of 26 September 2007, and to direct that the hearing of both the permission applications, that is the permission to appeal against the order of Ms Recorder Searle on 24 April and the order of Mr Recorder Weintraub on 26 September 2007, should be heard together; and that is what has occurred this morning and this afternoon.
6.	I say at once that the application for permission to appeal against Ms Searle’s order seems to me quite hopeless.  As I indicated, she was simply doing what she had to do.  She really had no choice but to refuse a stay and she cannot be criticised for making the order that she did, so that application must be refused. 
7.	Much more difficult is the application for permission to appeal against the order made by Mr Recorder Weintraub.  The principal reason it is difficult is that Mr D plainly did want to appeal against it at a very early stage.  He filed an appellant’s notice in time.  But what he did, unfortunately, was to file it in the Gloucester County Court, with the result that, because of administrative errors, largely, I think, by the county court, the papers either did not find their way to this court or were returned by this court to Gloucester. But for whatever reason no appeal was effectively mounted until I gave permission for Mr D to make his application for permission to appeal out of time when I had the matter before me on 14 August.  
8.	So Mr D can legitimately say that he has been very badly treated by the system.  He should have had an application for permission to appeal Recorder Weintraub’s  order on the stocks in the early autumn of 2007.  Had he done so, it would have been heard and determined one way of the other  and he would have been able to argue that the decision of the recorder to interfere with the arrangements for shared residence was quite wrong and should not be put into effect.  So I begin this judgment with considerable sympathy for Mr D.
9.	I now have to consider the factors both for and against granting permission.  Against granting permission are several powerful factors.  First is that I do not have the judgment in relation to the finding of fact hearing upon which Mr Recorder Weintraub based his September 2007 judgment.  That is a severe disadvantage because it is for a judge to make findings of fact and, even if the parties may disagree with them; indeed,  may think they are wrong, they are nonetheless bound by them and this court either cannot or is very reluctant to interfere with them.  The second factor, of equal weight, in my view, is that this application now relates to an order which is more than a year old, and when one is dealing with a child of this age a year is a very long time in the child’s life.  Mr D himself accepts that and says as part of his case that the little girl has expressed her views about where she wants to live and what she wants to do with some force, which plainly she would not have been able to do a year ago.
10.	Those seem to me extremely powerful factors against.  In addition, it has to be said as a third factor that the recorder did not form a very favourable view of Mr D.  He has this afternoon and indeed partly this morning taken me through a lot of documents and evidence which he says contradicts what the recorder found and demonstrates that the recorder was wrong in a number of respects, and there is no doubt at all that Mr D feels extremely strongly about his former wife and about her ability to care for their daughter.  But there is no doubt at all that Mr D made an unfavourable impression on the recorder whereas his former wife made a favourable impression, and it would seem that the recorder preferred the evidence of the mother to that of the father.  That again is something which is in essence for the recorder, not for this court.  This court has only seen Mr D making submissions; it has not heard evidence; it has not seen cross-examination.  And so those are the powerful factors against.  
11.	
12.	In favour of granting permission, it seems to me are the arguments that Mr D has advanced, particularly, this afternoon, namely that the recorder has made a number of serious errors in the course of his judgment and that his discretion in changing the order so dramatically without proper explanation is by itself flawed and therefore needs to be reviewed by this court.
13.	I do not propose to go through the matters that Mr D has raised.  I do not do so because it seems to me that they are largely a matter for oral evidence and they are a largely a matter for a judge to resolve on the ground.  I have only heard one side and, as I tried to explain to Mr D earlier today, sympathetic as I feel towards him, my remit in this matter is extremely limited.  The one question I have to ask myself is: is there a reasonable case for saying that the recorder’s judgment is so arguably flawed that I should allow an oral hearing of the appeal on the basis that the appeal would have a reasonable prospect of success? 
14.	So those are the factors which I have to balance.  Unsatisfactory as it I fear it may be to Mr D, I have come to the clear conclusion that it is now too late to challenge the order made on 26 September 2007 by way of appeal.  It is more than a year ago.  It was an order made in the exercise of a judicial discretion.  It was made on the basis of facts which the recorder found in a judgment not available to me.  Those factors, it seem to me, make it  impossible to grant permission on an application for permission to  appeal. On any appeal the  court would be bound to say, well, the proper course here is to go back to the court of first instance and invite the court of first instance to make a fresh order.  
15.	Mr D may well want to apply for the application to come before a different tribunal.  He may well take the view that Mr Recorder Weintraub is not the right tribunal to hear it.  That will be a matter for him to make the application and for Mr Recorder Weintraub to adjudicate upon it.  But, having balanced the factors as carefully as I can in my mind, I have come to the clear view that this application must be refused and that if Mr D wishes to change the contact arrangements or indeed restore the shared care arrangements between himself and his former wife, then he must apply back in the county court and, if dissatisfied with that outcome, he can renew his application for permission to appeal.  He is of course at liberty to apply to the county court for a different tribunal other than Mr Recorder Weintraub.  That, however, is a matter for him.  But I have come to the conclusion, that an appeal against the order would not succeed and  the application for permission must therefore must be refused.

Order: Application refused