M (Children)

The decision whether to transfer difficult family proceedings from a county court to the High Court is a broad case-management discretion. Judicial continuity is an important consideration, particularly where the judge has managed the case for a substantial period. Difficulty, frustration or an absence of progress does not, without more, justify transfer. The judge must also consider the practical consequences of transfer, including the parties’ ability to attend hearings, the effect of serious illness, the continuity available in the receiving court and the risk of delay. An appellate court should not interfere unless the decision falls outside the proper exercise of that discretion.

The proceedings concerned two children and applications by their father for contact-related directions and transfer of the case from Bristol County Court to the High Court. The mother was terminally ill, and the proceedings had involved a lengthy history of disputed contact and professional assessments. On 15 July 2005, His Honour Judge Barclay refused the transfer application and related applications concerning communication with the children’s school and contact with the paternal extended family.

Following the appointment of a guardian, the parties reached a broad agreement reflected in a consent order dated 20 October 2005. The father accepted that the latter order was effectively not open to appellate review. The principal issue was whether the refusal to transfer the proceedings should be set aside.

Lord Justice Thorpe delivered the principal judgment. Lord Justice Rix agreed with his reasons, and Lord Justice Keene agreed with both judgments. The appeals were dismissed.

1. The Court of Appeal was concerned only with Judge Barclay’s refusal to transfer the proceedings on 15 July 2005. It was not reviewing the correctness of earlier discretionary decisions in the lengthy litigation.
2. The application to transfer was governed by a broad discretion. A judge who had assumed responsibility for a particularly difficult case for nearly two years was best placed to decide whether transfer to a higher tier or a different judge was appropriate.
3. Relevant considerations included the desirability of maintaining judicial continuity; the seriousness of the mother’s diagnosis and the additional stress caused by requiring her to attend hearings in London; and the uncertainty whether transfer would preserve continuity or allow future hearings to be fixed without undue delay.
4. County court judges have a responsibility to prevent cases being transferred too readily merely because they are difficult or because the judge experiences frustration at the lack of apparent progress. That responsibility was particularly important given the pressures on the Family Division.
5. Judge Barclay’s decision was orthodox and correct. The fact that no progress had been made towards restoring direct contact did not take the decision outside the proper exercise of his discretion. The subsequent consent order had enabled indirect contact through the guardian, communication with the children’s school and exploration of contact with the paternal family.

Appeals dismissed.

• Court of Appeal (Civil Division): In [2005] EWCA Civ 1712, the appeals from orders of Bristol County Court were dismissed. The refusal to transfer the proceedings to the High Court was upheld. The later consent order was treated as effectively not open to appellate review.
• Bristol County Court: His Honour Judge Barclay refused the transfer application and related contact applications on 15 July 2005. A subsequent order made by consent on 20 October 2005 implemented proposals involving the children’s guardian, the children’s schools and the paternal extended family.