B4/2006/0950
Neutral Citation Number: [2006] EWCA Civ 1205
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHELMSFORD COUNTY COURT  
(HIS HONOUR JUDGE NEWTON)
 
Royal Courts of Justice 
Strand 
London, WC2 

Thursday, 27th July 2006
 
B E F O R E:
LORD JUSTICE THORPE
LORD JUSTICE WALL
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K (CHILDREN)

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(DAR Transcript of 
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MR S CHIPPECK & MR D MARKHAM (instructed by BTMK Solicitors LLP, County Chambers, 23-27 Weston Road, Southend on Sea, ESSEX SS1 1BB) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
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J U D G M E N T
1.	LORD JUSTICE WALL:  This is an application by Mr M for permission to appeal against an order made by HHJ Newton sitting in the Chelmsford County Court on 12 April 2006.  The application before the judge was an application by Mr M for permission to apply for an order for contact with his three half-sisters, whom I will identify by the initials A, S and B.  They were born respectively in 1994, 1997 and 1998 and so they were in round terms 12, nine and six years old, respectively.  The factual circumstances of this case are highly unusual and the manner in which the case proceeded before the judge was also unusual and in many respects unfortunate.  

2.	The essence of the case is this: Mr M is the son of Mrs K by her first marriage and by that marriage Mrs K had two children, one of whom was Mr M and the other was a daughter.  She then re-married and had the three children by her second husband who are the subject of this application.

3.	Mr M himself had obviously a very, very troubled childhood, into which I need not go, and when the matter was before the judge he was a serving prisoner serving a life sentence for murder; not a domestic murder, a murder outside the family.  He had been given, as it were, a tariff, a minimum sentence of I think 10 and-a-half years.  His application was made, as it were, from prison.  There had been it seems no real discussions between Mr M and his mother about the application.  His case was that she simply refused to discuss it.  Her case was that she was deeply upset by it being made without being canvassed fully in advance.  Those appear to be the respective positions on paper.  

4.	So Mr M made his application to the judge.  He filed a short statement in which he explained that he had had a very unhappy childhood, that his three half-sisters were effectively his only real family, and that he and his mother had become estranged although she had previously been visiting him in prison.  Therefore, he thought that he had a part to play in the life of his half-sisters, although he recognised that in his particular circumstances it could be minimal only and would have to be initially by way of indirect contact, even to the point of letters being collected and saved by his mother to be shown to his half-sisters at a later stage.  Indeed, I think on the dates the likelihood is that he would not be released if he served the 10 and-a-half years until the youngest child was, I think, nearly 16 or getting on that way.

5.	It was clear that the application had caused grave distress on the other side of the family; that is, to Mrs K and her husband.  The three girls were in complete ignorance, I think even of Mr M’s existence: certainly, the two elder ones had had only very minimal contact with him when they were both very young and one, indeed, was a babe in arms.  They would have had no recollection of him.  Indeed, the third child, B, would not even have been born when he left home.  

6.	So the connection was tenuous but I fully understand Mr M’s intense feelings on the subject; no doubt heightened, as Mr Chippeck told the judge, by the fact that he was in prison and had only the four walls for company and therefore this was an issue that was clearly occupying his mind.  Mrs K had filed a statement in response, strongly opposing the application and dealing in great detail with the history of her relationship with her son, which once again I need not go into.  

7.	So the matter came before the judge on 12 April.  Both parties were represented.  Statements had been filed and in the normal course of events, and this may be difficult for Mr M to understand but I think I need to emphasise it, an application of this nature for permission to apply for a contact order would normally be dealt with on paper.  A judge would not hear oral evidence unless there was some point critical to the determination which could only be understood and decided by hearing oral evidence, and in the instant case there was no challenge by Mrs K to anything in Mr M’s statement.  She did not want to cross-examine him and there was no application to cross-examine her.  Indeed, in the very sensitive and tense atmosphere of the case, the judge would not only have been following normal practice had he refused to hear oral evidence but he would have been fully entitled to do so.

8.	But as I said a moment ago, the case took a most unfortunate turn because, as alas only too common in the county court, the production order which was designed to ensure that Mr M was produced for the hearing got lost in the system. Mr M was not produced and was not in court when the parties assembled before the judge for the hearing.  Plainly, this put both the judge and Mr Chippeck, who was representing Mr M, in a very difficult position.  

9.	We have a transcript of everything that occurred on that day, and I think it is necessary for the purposes of this judgment to go through it with some care because the only point taken on this appeal is that the procedure adopted by the judge was unfair; that he gave a judgment in the absence of Mr M, effectively thereby closing his mind; thus when Mr M was belatedly produced by the prison authorities, the judge had made up his mind and was therefore not properly able to consider further information made available to him.  The procedure was thus, it is said, unfair.  Justice was not seen to be done and even if the result was appropriate (and no challenge is made to the result in the appellant’s notice), the procedure was wholly vitiated by the judge’s insistence on proceeding in Mr M’s absence.  Therefore, the matter has to be reheard by a different tribunal.  That is the way that the case is essentially put.

10.	So we start with a discussion between counsel and judge without Mr M being present and the discussion is whether or not he is going to get to court, when he is going to get to court and if he is going to get there is there going to be time to hear the case after he has arrived?  The complication in the proceedings, and one which the judge in my view was fully entitled to take into account, was that this application had originally been launched in the family proceedings court, and the family proceedings court had transferred it to the county court partly because it was difficult and partly, I think, because on that occasion also the prison authorities had not produced Mr M.  But the corollary to that was that Mrs K and her husband, who were not publicly funded and were having to pay their own legal fees not only had a second hearing, but also all the stress and strain which accompanied that second hearing.  The judge made it therefore clear, and I think was entitled to make it clear, that he was not minded to adjourn to a third occasion; he was intending to hear the case that day, and the only question was whether or not Mr M could be produced in time.

11.	So after the initial discussion the judge adjourned for further enquiries to be made, but in the course of doing so there was an exchange between counsel and the judge which I think is of some significance for our purposes.  The judge said that he was not particularly anxious to delay inordinately in order to enable Mr M to arrive and Mr Chippeck then said:

“It may be that this case is going to be resolved in submissions in due course, but as your Honour would know, it is a case of a client hearing it and feeling that he has had an input.”

To which the judge replied:

“I confess that I had not expected there to be evidence.  I am not suggesting there should not be, in any way. But I have obviously read the statements filed by the mother and by the step-father and I am aware of the law.”

12.	Now that exchange, to my mind, is significant for a number of reasons.  The first is that both Mr Chippeck and the judge were, in my view, recognising what was the conventional and normal procedure for applications of this nature; namely, they will be dealt with on the papers and there will not be oral evidence.  That is the first point.  But equally it is clear from what the judge said, in my view, that he had not closed his mind to the possibility of oral evidence because he says in terms, “I am not suggesting there should not be in any way …”.  

13.	Counsel, or it may have been I think the solicitor, Miss Hume, acting for Mrs K, then expressed her client’s anxiety about an adjournment and the cost, as well as the stresses and strain, and the judge made it clear that he was not minded to put the hearing off but he adjourned for a short while for there to be further enquiries put in train to see whether or not Mr M was going to turn up or be produced in time.

14.	The information which the judge received appears to have been inaccurate because he was told from the enquiries he made that it would take the best part of two hours to get Mr M to court.  By this time it was about 12.25, so he was unlikely to be at court much before 3 o’clock and probably later than that, and in those circumstances the judge said in effect: well, I am going to go ahead.  I have a choice.  Either we proceed in your client’s absence, he is after all represented through you, and therefore in court, or I adjourn it.  Those were the two options open to the judge.  

15.	Mr Chippeck said that he would much rather the case start at 3.30, if the client could be present by then, than it be heard in his absence.  He made it clear to the judge, perfectly properly, and if I may say so quite courageously, that if the judge was minded to proceed in Mr M’s absence, he would make an application for permission to appeal.  The judge made it clear, however, that he was minded to proceed.  He said: 

“I shall hear the case, I shall hear your submissions, and I shall give a judgment.”

16.	At that point it appeared that Mrs K was not in the building, so there had to be a further short adjournment for her to arrive.  She duly arrived.  It was by this time about 12.45 when the court reassembled and Mr Chippeck opened the case to the judge and made his submissions.  He made it quite clear to the judge that he did not wish the case to proceed in Mr M’s absence.  He was, as it were, opening the case to the judge under protest but loyally abiding by the judge’s decision that he was refusing an adjournment and wished to proceed and counsel reiterated, again if I may say so properly and courageously, that he was as it were opening under protest, and that he would be likely to be making an application for permission to appeal if the judge proceeded.

17.	Mr Chippeck then put his client’s case to the judge, and again I need not I think read this because it seems to me he put the case fully, clearly and correctly to the judge on the instructions which he had from his client and on the basis of his client’s statement.  He addressed the judge both on the facts and on the law.  He took the judge through the section which I will myself refer to in just a moment, and he then sat down.  

18.	The judge raised with him another authority of which the judge himself was aware and Mr Chippeck addressed the judge on that as well.  Then the judge heard submissions made on behalf of Mrs K, and having heard those submissions on behalf of Mrs K and her objections to the application, the judge then said that he would give judgment at 2 o’clock.  At 2 o’clock he duly gave judgment.  At that point, Mr M had still not arrived but he did arrive, it appears, as the judge effectively was concluding the judgment.  The judge came to the clear view on the section, applying the relevant authorities, that this was a case where permission should be refused.  It is not vitally necessary for the outcome of this application that I go into the merits of it in any detail, but I simply refer to section 9 and section 10 of the Children Act 1989, which the judge had in mind, particularly section 10(9), where the judge had to consider the nature of the application, the applicant’s connection with the children in question and in particular, and this was a factor which plainly weighed in the minds of Mrs K and in the judge, any risk there might be of the proposed application disrupting the child’s life to such an extent that he would be harmed by it.  That was the essential basis of Mrs K’s objection, given the history and the fact that Mr M was in prison.

19.	So the judge gave his judgment and at the conclusion of it he said to counsel:

“I am told that your client is about to arrive or has just arrived at court, or is arriving shortly.”

He then said to Mr Chippeck:

“I do not know whether you want me to break or you want me to finish off? What do you want me to do?”

20.	Mr Chippeck replied:

“Your Honour, in these circumstances I think I should ask your Honour to break.  I think I should inform him immediately of what has happened and then report back to you with what the position is.  Can I say, there may be, and I know your Honour has been put in a very difficult position by this, but there may be other arguments that I may be instructed to put forward, and it may be that one may need to consider what has been said in your Honour’s judgment in a preliminary sense because your Honour has not had the advantage of hearing my submissions based on instructions.”

21.	The judge replied:

“Well, I am afraid I do not accept that and I should say that in the course of my judgment I have obviously had to have regard for the human rights under Articles 6 and 8, both your right to family life and a fair hearing but also of course the children’s and the mother’s, and I have had to balance that.  I take the view that somebody is instructed to put forward a case, you clearly have been properly instructed.  I am well aware that you have not met your client before today but it seems to me that the court is entitled to take the view that if you are represented by counsel, albeit you are not there to give detailed instructions, on an issue where the matter is well set out in the papers in any event – well, we will see where we go.  I will break for a short while, allow you to meet your client and then you can make such application as you wish.”

22.	The matter was then adjourned for Mr Chippeck to see his client.  Mr Chippeck has been extremely frank with the court as to the communication which then took place between himself and his client.  I make it quite clear that in what I am about to say I imply no criticism of Mr Chippeck whatsoever.  He was in a very difficult position and facing the circumstances which he probably had not faced before in his professional career.  But he clearly formed the view that the judge had made up his mind and that there was no purpose in Mr M giving oral evidence and that was, he frankly tells us, the advice he gave to Mr M.  

23.	I do not criticise the second limb of that advice at all because it is clear, as I have already I think indicated, that in a case of this nature oral evidence would be the exception rather than the rule, and there was frankly nothing that Mr M could say to the judge in person which Mr Chippeck had not said to him on instruction.  Alternatively, if more information was to be imparted, it could be fully imparted by Mr Chippeck on instructions to the judge.  That is indeed what happened because when the court resumed, we do not have the first minutes or seconds of the tape recording but nothing appears to turn on that, Mr Chippeck says to the judge:

“Your Honour had reached a point in time when your Honour had, as it were, given judgment.  Then it became apparent to your Honour that my client being brought, and it is a rather unusual position. There are some factual matters I would like to address the court about.”

The judge replied:
“Yes of course.”

24.	Mr Chippeck then addressed the judge on two particular points.  He sought to correct any impression that had been given by Mrs K that he had not tried to see his sisters before the application had been made.  He also made it very clear in, as it were, a secondary point, that he had not launched into the application without exhausting the family hurdles of attempting to discuss the matter with his mother.  His case put by Mr Chippeck was that his mother had simply refused to discuss the matter and the attempts to do so had been met by silence.  He had, therefore, no alternative but to take proceedings.  Mr Chippeck, for the reasons I have already given, did not invite the judge to hear oral evidence from his client.  In fairness to Mr Chippeck, I think it has to be said that if he had invited oral evidence from his client, the likelihood is that the judge would have been within his rights not to hear it on the grounds that it did not add anything to the case. 

25.	In any event, no application was made and the judge then proceeded, having heard everything that Mr Chippeck wanted to say on Mr M’s behalf, to give a subsidiary judgment or secondary judgment, and the secondary judgment again we have transcribed.  The judge faithfully records the submissions made to him by Mr Chippeck on the facts.  He sets out the background history, that he had given judgment.  He was then told that Mr M had arrived.  He concluded his judgment “… and given time for further instruction and further submissions to be made”.  

26.	He then records the two factual issues which Mr M felt strongly and he went on to say:

“However, it seems to me the position is as follows. Even if I accept, and I do for the purposes of this second and subsidiary judgment, that the submissions made to me on Mr M’s behalf are that he has tried to see his half-siblings and in addition that he has had a relationship albeit with his mother but less frequently, nonetheless, it seems to me that I must direct my attention to section 10(9) of the Children Act and I remind myself that this is really an application for indirect identity contact, if you like, at least in the first instance, so far as these three children are concerned, with whom I am primary concerned, their welfare being my primary consideration not Mr M.”

27.	He went on to say:

“The connection with those three children is that he is not a parent but he is a half-brother, so the situation is somewhat different from that which is frequently before the court.  However, it seems to me that the relationship of a fractured relationship that exists between Mr M and his mother and his family generally, which he feels even more keenly now than he probably ever has, is not something which is going to be put right by this application.  Indeed, in my judgment it seems to me that there is a very high risk of the existence of an application being corrosive to the children’s welfare.  It seems to me that it is entirely likely that they will be harmed, and significantly harmed, by it because of the way in which this has come about and the position as far as the family generally is concerned.”

28.	He went on:

“It is submitted to me that he, ‘loves his mother to pieces’ and I have commented that this forum is not the forum, that [it] is not the way to mend fractured relationships.  He knows where his mother is as I understand it.  There is nothing to prevent some form of communication taking place, albeit that is going to be difficult from the circumstances in which he currently finds himself.  With a bit more time and a bit more trust, it may be, and I hope it will be, that Mrs K takes to heart what I have said about my uncomfortableness of secrets, she may or may not, but it is her interests as much as the children’s interest that she does so.  It seems to me that in the circumstances, notwithstanding the change of factual situation, which I take into account, it is not appropriate and I do not give permission in these circumstances.  So my order remains the same.  I am not insensible to the difficulties which Mr M faces, but it seems to me as I said earlier having regard to Articles 6 and 8, I have tried to deal with this matter fairly in relation to all parties and having regard to each party’s right, my primary consideration being of course the welfare of A, S and B.”

The reference to “secrets” is as I indicated earlier that the three girls are not aware I think even of Mr M’s existence, and they are certainly not aware that he is prison serving a life sentence for murder.  

29.	Against that background, I turn to the appellant’s notice and the grounds of appeal contained in the appellant’s notice.  They are, as I indicated earlier, solely directed towards what I will call the article 6 point.  The first point made is that it was of course no fault of Mr M that he was not produced in time for the hearing as he should have been.  The second point is that the judge was wrong to have refused an application to start the case when the appellant arrived at court.  The prison service had indicated that he would be at court any time between 1.45 and 3.30.  

30.	Pausing there, I do not think that is a fair criticism of the judge.  The information which the judge was given, upon which he was entitled to act in good faith, was that Mr M was unlikely to be produced in time for the hearing properly to take place, and in my judgment as a matter of discretion the judge was entitled to proceed given that Mr M was represented and the case was being dealt with on the papers.

31.	The grounds are simply factual.  I have explained what happened.  I have been through that.  Paragraph 4 says that the learned judge was wrong to refuse the submissions made on behalf of the appellant, that the learned judge treated the judgment just given as a preliminary view based on the papers and oral submissions, and that the appellant be given the opportunity to give evidence so that the learned judge could reach a final decision having heard the appellant.  Instead, the learned judge ruled that the decision he reached would stand.  Paragraph 5 says that it is submitted by reason of the above that the decision not to await the presence of the appellant in the first instance or to hear from him in the second was plainly wrong, that the proceedings were unfair and contrary to the best interests of the children.  

32.	There is substantial jurisprudence in the European Court that applications under article 6 alleging unfairness have to be perceived in the round; one has to look at all the circumstances and see at the end of the day was the procedure unfair to the appellant.  

33.	In my judgment, it was not.  The judge was entitled to deal with the matter on the papers in the first instance.  It was of course most unfortunate that Mr M was not produced in time but the judge, as I indicated earlier, was in my view entitled to proceed.  This was an application which was going to be dealt with on paper.  It was not one in which there was likely to be oral evidence, even though in the passage I indicated earlier the judge had not shut his mind to that possibility.

34.	The critical question of course is what happened after Mr M arrived.  Was the procedure adopted by the judge in those circumstances fair?  In my judgment, looking at the matter in the round, it was.  The judge allowed Mr Chippeck an opportunity to take instructions.  He then listened carefully to what Mr Chippeck said.  There was no application made to the judge for oral evidence, for very good reasons, and would in event might well have been refused, but no application was made.  Further submissions were made.  The judge considered them carefully, took them into account and came to the conclusion they did not alter his overall conclusion.  

35.	In my judgment looking at it in the round, whether one looks at it in terms of article 6 or one looks at it in terms of natural justice, I do not think the judge can be criticised for the course which he took.  I need not refer, I think, in detail to the terms of article 6 but the judge had plainly in mind that the article 6 rights existed for everybody, not just for Mr M, and it would in my judgment have been grossly unfair to Mrs K and to the children had the judge adjourned for yet a further occasion; more stress, more money and more difficulty.  

36.	Had I felt that in his second judgment the judge, as Mr Chippeck submits, had truly closed his mind and that whatever Mr Chippeck had submitted would have made no difference, I think my view would itself would have been different.  Had I felt the judge had been unfair after Mr M arrived I would have no hesitation in setting aside his order and directing a rehearing, even if the likely result, almost one might say the inevitable result, would be the same, because the procedure would not have been fair and not been seen to have been fair.

37.	In my judgment, the judge gave counsel the opportunity to make whatever submissions he wished.  Mr Chippeck duly did so, and having done so the judge fully took those into account.  Had they been such as to cause him to change his mind, I am satisfied that he would have done.  But equally, it seems to me, the matters raised by Mr Chippeck and put to the judge were not such as to require the judge to change his mind.  If anything, they reinforced the sensitivity of the application and the good sense in refusing it.  

38.	So looking at this matter in the round, I have come to the very clear conclusion that the judge was entitled to act as he did.  The procedure was not unfair and therefore this application for permission must be refused.

39.	LORD JUSTICE THORPE:  I agree.  There is nothing that I can add to my Lord, Lord Justice Wall’s comprehensive judgment.

Order:  Application refused.