K (Children), Re

Neutral Citation Number: [2005] EWCA Civ 1094 IN THE SUPREME COURT OF JUDICATURE IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION (MRS JUSTICE BRACEWELL) B4/2005/1175 Royal Courts of Justice Strand London, WC2 Thursday, 21 July 2005 B E F O R E: LORD JUSTICE WALL - - - - - - - K (Children) - - - - - - - (Computer-Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street, London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - The Applicant appeared in person The Defendant did not attend and was not represented - - - - - - - J U D G M E N T 1. 2. 3. 4. 5. 6. LORD JUSTICE WALL: Mr AK applies for permission to appeal against an order made by Bracewell J on 13 May 2005 in which she directed that there should be no direct contact between Mr K and his two daughters L, and S. This is one of those most unfortunate cases where there is an extremely long history of involvements by the courts, and where, at the end of that process, the court has failed to arrange contact between a father and his children. The hearing before Bracewell J (who knew the case well) took some time and her judgment is careful and considered; and I have this morning explained to Mr K that it is very difficult for this court to interfere with the discretion of an extremely experienced judge and one who, moreover, knew the case well. Nonetheless, the gravity of the outcome, both for the children and for Mr K, and the circumstances in which the children have come to be alienated from him both seem to me to be factors which entitle Mr K to address the full court on an application for permission to appeal with the appeal to follow if he persuades the full court that he has reasonable grounds for disturbing Bracewell J's order. It may be that hers was the only order that could have been made in the unsatisfactory circumstances of the case. But as I say if this is the order which is to govern the relationship between Mr K and his children he is, in my view, entitled to bring it to a hearing before the full court on notice to Miss J and the guardian so that the full court can consider whether he has an arguable case and analyse what has gone wrong over the years. He is entitled, in my view, to invite the full court in those circumstances to give him permission to appeal and, if he succeeds, to have the appeal heard at once. As I indicated earlier, I do not wish to encourage false hopes in Mr K and I have warned him of the costs consequences if his application does not succeed. Nonetheless, in a case of this nature, which in many ways demonstrates a number of defects in the system, it is in my view appropriate for it to be considered fully by this court on a permission application and not dealt with by a single Lord Justice in my position. I will accordingly direct that the application for permission to appeal be adjourned; that it be listed on notice to CAFCASS and to Miss J on a date and time to be fixed. I do not think it should take more than two hours of court time. I will direct that it be heard if possible before a three-judge court but if such a listing will unduly delay the matter it can be heard by a two-judge court. In either event at least one member of the constitution should have family experience, and since I have read the papers it would seem sensible - and Mr K invites me to make the direction - that the court, if possible, should include myself as a member of the constitution. In the meantime Mr K, according to Bracewell J's order, has the opportunity for indirect contact by writing to his daughters. Bracewell J indicated that Mr K did not feel able to take that up. I have not discussed this with him. All I can say to him is that he will not prejudice the outcome of his application for permission or the appeal if he does avail himself of the right to write to the children which Bracewell J gave him. (Application adjourned; to be relisted on notice to the parties, with appeal to follow if permission granted; transcript to be transcribed at public expense and to be served on all the parties). SMITH BERNAL WORDWAVE