2001/0497

Neutral Citation Number: [2001] EWCA Civ 283
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY
(Mr Justice Johnson)

								Royal Courts of Justice
								Strand
								London WC2

							Wednesday 28 February 2001

B e f o r e:

THE PRESIDENT OF THE FAMILY DIVISION
(Dame Elizabeth Butler-Sloss)

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T (CHILDREN)

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(Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7404 1400
Official Shorthand Writers to the Court)
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The Applicant appeared in person

The Respondent did not appear and was not represented

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J U D G M E N T
	Wednesday 28th February 2001
JUDGMENT
1.	THE PRESIDENT: This is another chapter in an extremely difficult case, in which the father makes a renewed application for a stay of execution of the order made by Johnson J in Norwich on 23 February 2001, which was Friday of last week.
2.	The facts are long and complicated, and for the purposes of this application it is not necessary for me to go into them, save to say that the children lived at one time in Spain. There had been disputes between the mother and the father and the father was said to have abducted the children to England. Under Hague Convention proceedings Wall J's decision that they should return to Spain and to their mother was reversed by the Court of Appeal, and reversed not on the fact that they had not been abducted, but on the fact that the daughter, G, who is now 12, objected so strenuously to her mother taking over her care. The second child, T, is seven. Since the decision of the Court of Appeal in the Hague Convention proceedings, the children have continued to live with their father in East Anglia and they have had not particularly satisfactory contact with their mother in London. 
3.	There have been proceedings continuing over the whole of the last year, and eventually the substantive hearing as to the future residence of the children in this country was heard during the whole of last week in Norwich. Johnson J not only had the evidence of the mother and of the father, but also the report of the Official Solicitor, representing both the children; and the Official Solicitor instructed Dr Lucy, who is a child consultant psychiatrist, and the judge had that evidence before him. I do not know whether there were other witnesses.
4.	The judge gave a long judgment, of which I have a rough note provided by counsel for the Official Solicitor, in which he came to the conclusion that the children should both move to live with their mother. That was based upon the advice both of the Official Solicitor and, in particular, of Dr Lucy; but, more, it was based upon the judge's own assessment of the situation, he having heard at length the evidence of the mother and the father and, of course, having looked with great care at the considerable history of this case in Spain and Gibraltar and in England. The judge ordered the Official Solicitor to continue to represent the children and that G and T should be placed in the care of the mother; that T should be handed over to the mother at 6.00 pm last Friday; and that G should be handed over to the mother at 4.00 pm tomorrow afternoon. Then he made a number of injunctions.
5.	The judge took into account the fact that the mother has had bouts of depression and had a drink problem. Consequently there are monitoring arrangements set in place to monitor whether she takes alcohol in the future. But the evidence before the judge was that she had recovered from her depression and that she has recovered from her alcohol abuse.
6.	This was a careful judgment by a most experienced judge, who had to consider the welfare of the children as his first and paramount consideration under section 1 of the Children Act and, in particular, under what is popularly called the checklist under section 1(3).
7.	When the judge made this order, which is clearly going to be viewed, particularly by the daughter as well as by the father, with dismay, the father sought a stay of execution in order to prevent the boy being removed on Friday. I considered the matter on paper with, I have to say, an inadequate amount of information. I had a note of the judge's order and some information from the Court of Appeal office as to what had happened, together, of course, with what the father had been able to put together at the very last moment. I took the view, on the information that I had, that it was not proper to grant a stay.
8.	As I understand it, the boy was presented by the father to the mother on Friday evening and there was a scene. He refused to go - according to the father, he ran away - and G was engaged in a serious verbal altercation with her mother. So T stayed with his father.
9.	The father, acting as usual in person, came before me this afternoon seeking an order from me whereby I would reconsider the decision to which I came on paper on Friday, having heard of course the representations he has now made orally, as well as a careful two‑page note that he has provided dated 25 February.
10.	I have looked at all of these matters very carefully. I understand that the Court of Appeal is likely to be able to hear the father's application for permission to appeal quite quickly, in the next two or three weeks - subject always, of course, to the ability to get a copy of Johnson J's judgment in time. The father says, and I understand the problem he has, that he feels satisfied that he has very good grounds at the Court of Appeal but that he needs better advice. Therefore he wishes to go and get some advice before he sets out his grounds for permission to appeal. He urges, with some force, that the children are not in danger, that there is no harm in them staying where they are; that G was very upset and had this scene with the mother on Friday; that it is a bad thing to force the children into the custody of their mother and then move them back to him, perhaps in two or three weeks if he is successful on appeal. He is very concerned that the children should not move backwards and forwards and, if there is any possibility that the decision of Johnson J might be overturned, then he would argue most strenuously that this court ‑ myself ‑ should not allow the children to move just to have them move back. He also says that the mother has not made proper preparations for the children: she is living with a friend or relative who has children in cramped accommodation and that his children would have to move into this cramped and unsatisfactory accommodation.
11.	There is a note from the Official Solicitor's representative showing the sort of accommodation that the children are expected to live in. I understand that Johnson J has seen a copy of this note and has not reversed his order as a result of it.
12.	The father says that the judge is plainly wrong. He has raised certain matters which I dealt with on paper and which it is not necessary for me to repeat. I have to say that none of the points that I made on paper to him on Friday seem to me to have been changed by what I have seen today, which are a note of Johnson J's judgment and the written and oral representations of the father, together with the note as to the prospective accommodation.
13.	In granting a stay, the Court of Appeal has to be satisfied that there is a real arguable case and that there is some prospect of success. The appellant does not necessarily have to be sure to succeed, but there has to be something that the Court of Appeal can get its teeth into to say that the judge might have got this order wrong. I have warned the father that the problem is that the Court of Appeal is told by the House of Lords, in the decision called G v G (1983) 4 FLR 327, that if a judge exercises his discretion in a family case, then it is extremely difficult for the Court of Appeal to intervene. Either the judge has to have approached the case in a wrong way or he has to have come to a decision which was, on the face of it, plainly wrong.
14.	This judge, with enormous experience, has taken a careful look at this case after a five days' hearing. He has exercised his discretion. He has made a very robust order, but based on cogent grounds and in respect of which it appears to me, looking at the amount of evidence which I have at the moment, he had cogent evidence upon which he could come to the conclusion to which he came. The father takes the view that the procedures were flawed; that the evidence of the expert was flawed; that the evidence of the Official Solicitor's representative was flawed; that he had no opportunity for a second report from an expert and that he had no opportunity properly to digest the volume of evidence that was provided to him, including, in particular, the complicated report from Dr Lucy which had come to him at very short notice. These were matters that the judge took into account. They are matters as to which, at the end of the day, the judge is boss in his own court, unless he is plainly wrong.
15.	Looking at this with anxious care, and being very concerned that children should not be moved unnecessarily, I take the view that prospects of success of the father are very small indeed. I do not believe it is right that I should interfere with the order of the judge, which was carefully arrived at, by granting a stay which would keep the children for another two or three weeks in East Anglia, where they are living with their father, unless I am satisfied that there are real prospects that that order might be set aside. On the contrary, my view is that it would be very, very difficult to set aside the judge's order. Consequently, the renewed application for a stay is refused. 
ORDER: Application refused