M (A Child), Re [2001] EWCA Civ 1748 (5 November 2001)

Neutral Citation Number: [2001] EWCA Civ 1748 B1/01/0233 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE MEDWAY COUNTY COURT (His Honour Judge Russell-Vick QC) Royal Courts of Justice Strand London WC2 Monday, 5th November 2001 B e f o r e : LORD JUSTICE THORPE ____________________ M (A CHILD) ____________________ (Computer Aided Transcript of the Stenograph Notes of Smith Bernal Reporting Limited 190 Fleet Street, London EC4A 2AG Telephone No: 0171-421 4040 Fax No: 0171-831 8838 Official Shorthand Writers to the Court) ____________________ THE APPLICANT GRANDFATHER appeared in Person. ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © LORD JUSTICE THORPE: On 9th March 2001 Kirkwood J gave judgment on applications brought by Mr. P on the one hand and the Kent County Council on the other. The third party to the proceedings was the guardian ad litem, appearing for Mr. P's granddaughter, E, born on 15th March 1991 and therefore almost 10 years of age. The case has an extraordinary history, which was carefully recorded by the judge in his admirably full and sensitive judgment. In the end, he refused Mr. P's application for contact to E and reaffirmed the local authority's order under section 34(4) of the Children Act 1989 terminating contact. The reasons for his decision were clearly articulated between pages 24 and 26 of his judgment. He identified six considerations which dominated the outcome. One of those considerations I will refer to this morning specifically. It was that there might be a risk of re-abduction were contact re-established, that risk arising out of a flagrant abduction that had been perpetrated in 1999. Mr. P's application to this court for permission to appeal only reaches me today, 5th November. No doubt one of the reasons for that intervening delay is that Mr. P was committed to Kings College Hospital in July for major heart surgery. He sadly has a severely damaged heart which is incapable of reparation, short of heart transplant. The procedure in July involved 7 days in-patient admission and blocked arteries were replaced. The operation was not free from complication and Mr. P was re-admitted for 10 days of further in-patient treatment in August. As Mr. P put it, in ordinary language his heart is so damaged that it is not working. His general practitioner has written a report dated 1st November, in which he broadly confirms and establishes this medical history. The other evidence before me this morning is a letter from the solicitors who acted for Mr. P at the hearing before Kirkwood J. They commendably have written against the background that his legal aid terminated with the outcome in the Family Division. They make the point that the sixth consideration mentioned by Kirkwood J, namely the risk of re-abduction, is clearly non-existent in the changed circumstances. That point I fully accept, having seen Mr. P in court this morning and seeing how obviously weakened he is by his condition. The next point they make is one that is not specifically to be found in the medical evidence. They say that his consultant has given him an estimate of about six months of remaining life. They then say this: "If Mr. P was able to see E at least on a goodbye visit basis without her being distressed by the event, then that would be merciful and respect the care that he gave to E for those years." I come now to the application for permission. As I have already indicated, Kirkwood J, in a comprehensive and balanced judgment, explained why he came down against renewed contact between Mr. P and E. That was a discretionary decision which he came to after evident heart-searching and full recognition of Mr. P's great contribution to E's early years of life. In those circumstances, it is inconceivable that this court would interfere with such a careful and humane expression. But the situation that has developed in the interim is dramatically different to the situation considered by the judge. The application for Mr. P to see E, at least on a goodbye visit basis, is one that manifestly demands judicial consideration. It is consideration that must inevitably be at a hearing with notice to the other parties, and it is consideration which must be given urgently in the light of the medical evidence. The one thing that the medical evidence fails to supply at present is any estimate of Mr. P's life expectancy. He tells me that he has an appointment at Kings on 19th November. It is important that he should obtain a brief confirmation from his consultant of what is set out in the letter from his solicitors of 30th October. It would be enough for Mr. P to take this letter to the appointment and to ask the consultant simply to confirm in manuscript, in a single sentence, that the statement in the first paragraph on page 2 of the solicitor's letter is an accurate statement. Although this is not business for the Court of Appeal, I will endeavour to ensure that it is dealt with as an urgent application in the Family Division. To that end I will correct the transcript of this short judgment immediately it is available to me and I will ensure that a copy goes to Kirkwood J and to the Clerk of the Rules in the Family Division, so that appropriate arrangements can be made for an expedited hearing. At the expedited hearing it would be sensible for Mr. P to have legal representation, certainly by his solicitor, Mr. Jockelson, and maybe by counsel, Mr. Chamberlain, who represented him in March. But that must be a matter for Mr. Jockelson to pursue with the Legal Services Commission. I will ask the Civil Appeals Office to send a copy of this judgment to the other parties to the proceedings, the guardian ad litem and the local authority, so that they have early notice of the issue that Mr. P is raising. That early notice will facilitate their preparation of their litigation position when the matter returns before the Family Division judge. This should be listed before Kirkwood J if it is at all possible, since he has an obvious command of the background and of the issues. Otherwise the application for permission to bring the case to this court is refused. Order: Application refused; directions as per judgment. 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