M (A Child), Re

Neutral Citation Number: [2003] EWCA Civ 601 IN THE SUPREME COURT OF JUDICATURE IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT FAMILY DIVISION (HIS HONOUR JUDGE MORTON JACK) B1/2002/1946 Royal Courts of Justice Strand London, WC2 Friday, 28 March 2003 B E F O R E: LORD JUSTICE THORPE LORD JUSTICE SEDLEY - - - - - - - M (A CHILD) - - - - - - - (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 MISS V VONWACHTER (instructed by Samuel & Co Solicitors, London NW5 4HT)appeared {L<ZCLAIM"on behalf of the Respondent} - - - - - - - J U D G M E N T (Approved by the Court) - - - - - - - Crown Copyright© SMITH BERNAL WORDWAVE Friday, 28 March 2003 1. 2. 3. 4. LORD JUSTICE THORPE: This is an application for permission with appeal to follow in a case of M which was before the court on 14 January as a permission application brought by Mr M as a litigant in person. On that occasion I adjourned over for this on notice hearing. The dispute between the parents revolves around an order made by His Honour Judge Callman on 17 February 2000. That provided: "The Court order of 1 February 2000 be amended by adding that IHM shall only be removed from the Jurisdiction of this court with the written consent of both parents specifying the place to which she is to be removed, the address and telephone number thereof and length of time of removal save that the father be at liberty to take IHM on short visits to Scotland to see her paternal grandparents." That restrictive condition is unusual, and it resulted from a dispute between the parents fuelled by Mr M's fear that the mother might abduct I to Jamaica where she comes from and where she still has family. So it seems that Judge Callman, Soloman-like, resolved the dispute by applying the same restriction to both. That arrangement has not worked out very well in practice. Three years later it seems that Mr M has invariably vetoed Mrs M's proposals and Mrs M has intermittently vetoed his. Accordingly in the spring Mr M issued an application for the variation of that order, his statement in support being dated 3 July. The case came before Judge Cryan who gave directions on that day prEscribing a date by which Mrs M should file her statement in response. She was substantially out of time, her statement being served on Mr M some three days before a hearing in front of His Honour Judge Morton Jack on 13 September. At that hearing Mr M appeared in person and Miss Vonwachter appeared for the defendant. It is against the judge's order that Mr M seeks to appeal. The order dismissed his application and condemned him in the costs on the basis that the judge held that his application was wholly misconceived, a complete waste of everybody's time and money, and he assessed Mrs M's costs, the legally aided litigant, in the sum of £950. 5. We have at the outset granted permission to appeal and we have heard from Miss Vonwachter endeavouring to support the judge's conduct of this hearing. The task is, in my opinion, impossible, since we have a transcript of proceedings which reveals that Mr M, as the applicant in person, never had any opportunity to give oral evidence. The hearing did not get beyond a lengthy exchange between judge and litigant, with occasional interventions from Miss Vonwachter. The judge relatively early in the course of these exchanges conceived that the only issue he was being asked to determine was whether the applicant father had behaved responsibly and in accordance with the condition imposed by Judge Callman in relation to an intended holiday that his sister had arranged for I for December 2002. He simply never comprehended that there was a need to decide the wider issue of whether continuing restrictions on Mr M were necessary, whether Mr M could demonstrate that, with the passage of time and given his deep roots in London as a property owner and as a London worker, continuing restrictions were required. It seems to me that on this instance this judge did not treat this litigant in person with the consideration and sensitivity that his application and his status each required. Miss Vonwachter has not demurred from the assessment that I take from the transcript of proceedings that the exchange between the judge and the litigant in person was somewhat intemperate. I am in no doubt at all that Mr M makes good his submission that he did not receive a fair hearing on 13 September and that the judge's misconception of his SMITH BERNAL WORDWAVE case and of his conduct in relation to the order of the court was equally misconceived. The costs order has no foundation. The judge misunderstood the case before him. Fortunately it is not necessary to direct any rehearing in the county court because the parties have today sensibly agreed that the order made by His Honour Judge Callman should be varied and that hereafter the arrangements for contact proceed on a more conventional basis. Each parent will be at liberty to remove I from the jurisdiction for the purposes of holidays without written consent or permission, providing that the duration of the holiday does not exceed 28 days. As a matter of good sense and cooperation the holiday plans will obviously be made known to the other parent and contact details supplied. We understand that Mr M ordinarily looks after I's passport. Accordingly on any occasion when Mrs M plans a holiday abroad with I Mr M must ensure that I's passport is in Mrs M's hands at least seven days before the date of departure, and Mrs M must ensure its return to Mr M's safe-keeping not more than seven days after her return. 6. The only specific exclusion from Mrs M's general freedom to holiday abroad with I must be Jamaica, because of her origin there and her continuing connections. If Mrs M seeks the removal of that specific restriction she will have to either obtain Mr M's agreement or present her case to a judge in the county court. These are always sensitive issues. Given the fact that Jamaica is not a Convention country the judge in the county court would obviously have to look with care at the risks involved and the available safeguards. However this morning I would simply propose to set aside the orders made by Judge Morton Jack on 16 September and to vary the order of His Honour Judge Callman to remove the restriction contained in paragraph 2 on page 1 and to replace it with the general permission for foreign holidays as indicated. 7. LORD JUSTICE SEDLEY: I agree. (Application granted; respondent's publicly funded costs to be subject of a detailed assessment). SMITH BERNAL WORDWAVE