B1/2001/1256
Neutral Citation Number: [2001] EWCA Civ 1989
IN THE SUPREME COURT OF JUDICATURE          
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CROYDON COUNTY COURT
(HIS HONOUR JUDGE WILLIAM BARNETT QC)
 
                               Royal Courts of Justice
                               Strand
                               London WC2
 
                          Wednesday, 12th December 2001
 
B e f o r e :

LORD JUSTICE THORPE
-and-
MR JUSTICE MORLAND
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AKINNIYI OLASUPO AKINTOLA
Appellant

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ABOSEDE OLUBUKUNOLA AKINTOLA
Respondent

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MR M TWOMEY (instructed by Grants Solicitors, The Old Tithe Barn, 520 Purley Way, Croydon, Surrey CR40 4RE) appeared on behalf of the Appellant.

MR R BARRETT (instructed by McMillan Williams, 56-58 Central Parade, New Addington, Surrey CR0 0JD) appeared on behalf of the Respondent.

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J U D G M E N T
1.	LORD JUSTICE THORPE: Mr and Mrs Akintola married in 1984. There is one child of the family, Lawrence, who was born on 2nd September 1988. He is therefore 13 years of age. In April 1994 the parties were granted a joint tenancy of premises at 6 Ivy House in Croydon by a housing association, and that remained the family home until their separation in 1998. The mother moved out with Lawrence at that time and obtained a short-hold letting for which she received housing benefit, but she initiated proceedings in the Croydon County Court seeking the transfer of the joint tenancy at 6 Ivy House into her sole name to provide a future home for herself and Lawrence.
2.	The proceedings were conducted at a very slow pace so that there had been little progress towards trial by September 2000. At that stage Mr Barrett came into the case for the mother and persuaded a district judge of the court to order an expedited trial. The case was then fixed for hearing in front of District Judge Cole. Unfortunately, the mother presented to the court a case that was deliberately false in order to fortify her prospects of obtaining the order which she desired. The dishonesty of her evidence was revealed during the course of cross-examination on 27th November 2000, and accordingly the district judge had no alternative but to adjourn.
3.	During the course of the adjournment, the mother filed a further statement, in which she admitted to a series of past lies, principally as to her housing accommodation and the arrangements that she had been making for Lawrence's schooling and for his transport to school, and she presented at the final hearing before the district judge a completely revised picture which was said to be purged of all dishonesty. The district judge heard the application on 8th January 2001 and refused her the relief that she sought. She exercised her right to appeal to the circuit judge, and that appeal came on for hearing on 15th May.
4.	The parties had the advantage of representation, by Mr Barrett for the mother and Mr Twomey for the father, before both the district judge and the circuit judge The judge clearly took a lot of trouble over the case. He heard no live evidence, but he had the statements of the parties and he heard argument over the course of almost a full court day. At the end, at about 4.00 in the afternoon, he delivered an extempore judgment, which he explained was in the interests of saving costs, although of course he thereby denied himself the opportunity of ordering his thoughts and his reasoning. But over the course of 61 paragraphs, he explained how his mind had fluctuated from an initial impression that the appeal should succeed, to a second stage when he thought it should fail, and then to an ultimate stage when he thought it should succeed. So his final order was to allow the appeal and to grant the relief sought.
5.	Mr Twomey sought permission to appeal, and in a skillful skeleton argument dated 19th June he submitted that section 55 of the Access to Justice Act 1999 should not be applied and interpreted strictly in relation to second-tier appeals in ancillary relief in county court proceedings. He said:
“The reason for this is that almost all other 'second appeals' will follow an appeal which is decided strictly on points of law and in respect of which permission to appeal would have been required for the first appeal. In the case of an appeal against a District Judge's decision in ancillary relief proceedings, the aggrieved party has an unfettered ability to appeal to the Circuit Judge. No permission is required. Further, the Circuit Judge may apply his own discretion and come to a different decision even where he finds that the District Judge acted without error of law or wrongful exercise of his discretion. Accordingly, whilst this is a second appeal, it is a second appeal with a difference.” 
6.	That submission led me, on 25th July, to grant a stay and to direct that the application should be adjourned to an oral hearing on notice with appeal to follow if permission granted. I at that stage saw this application as the vehicle for this court to reconsider the rule in Marsh v Marsh. However, the adjourned hearing was apparently fixed at counsel's convenience, and accordingly comes into the list after a delay of some five months. In the interim, this court has decided the appeal in the case of Cordle v Cordle [2001] EWCA/1791, handed down on 15th November 2001. The judgments in that case correct the bizarre aspects of procedure highlighted by Mr Twomey and make plain that from that date, any appeal from a district judge in ancillary relief should only be allowed on ordinary appellate principles.
7.	But Mr Barrett, in a well-reasoned supplemental skeleton, rightly insists that that reform can have no retrospective effect. Accordingly, the only question that we have to decide today is whether the discretionary choice of His Honour Judge Barnett QC is vulnerable to a submission that he has erred in law or principle or otherwise arrived at a discretionary conclusion that is plainly wrong.
8.	In seeking to establish the vulnerability of Judge Barnett QC's conclusion, Mr Twomey has advanced three principal submissions, and I will consider each in turn. His first submission is that the judge plainly elevated the welfare of Lawrence above the statutory level of first concern to a level of paramountcy, as though he had been deciding an issue governed by section 1 of the Children Act 1989. Now, the duty of the judge is defined by section 25 of the Matrimonial Causes Act 1973 (as amended). Subsection (1) of that section reads:
“It shall be the duty of the court in deciding whether to exercise its powers and if so in what manner to have the regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of 18.” 
9.	Subsection (2) then imposes on the judge the duty to have regard to the particular considerations contained in the statutory checklist.
10.	Mr Twomey's submission rests upon an assessment of paragraphs 54, 55 and 57 of the judgment below. I can summarise those paragraphs briefly. In paragraph 54 the judge draws attention to the fact that Lawrence is a pupil at a fee-paying school in Croydon, Trinity School, which is in the Shirley area. The accommodation that the mother was then occupying was only three quarters of a mile from Trinity, and 6 Ivy House is approximately a mile from Trinity, so there was an obvious convenience in ensuring that Lawrence's home was reasonably close to Lawrence's school. In paragraph 55 the judge developed the risk that if he refused the application, the local authority might meet its statutory duty to house the mother and Lawrence in an area of the borough far distant from Trinity and/or on an estate which was quite inappropriate for a boy attending a private school, with all the risks that he would be picked on by other children on the estate. A similar point was made in paragraph 57, that Lawrence's friendships were likely to be made with other Trinity pupils and that he should be able to entertain them and play with them at the sort of home that was appropriate. As the judge said:
“It is important that boys have an opportunity of mixing with other boys at the school, not only at school but outside the school as well.” 
11.	Now, those points seem to me to be realistic and moderately expressed. There is nothing in the judgment which, in my opinion, makes good the submission that the judge has elevated a statutory duty to give first consideration to Lawrence's welfare to something unacceptably high.
12.	The second point taken is that the judge failed to reflect in his judgment the gross misconduct of the proceedings by the mother. As Mr Twomey submits, authority shows that where one party is guilty of litigation misconduct, that will be reflected ordinarily in discretionary decisions as to costs, and unusually in the division of assets between the parties. Here the judge seemingly accepted dishonesty as being nothing but part of the litigation history. He accepted her third and fourth affirmations without seeming misgiving and accordingly imposed no penalty on her in any way for her wrongdoing. It seems to me that in a situation like this, the judge must certainly not adopt a punitive campaign against the transgressor. There is, in my judgment, no evidence that the district judge fell into that error. In my opinion, the proper approach at the hearing of the appeal was to treat the mother's evidence with proper caution and not to accept her statements unless transparent or corroborated.
13.	But on the essential issue of where she was then living, there was at least corroboration from the local authority in the form of a fax letter from the council, saying that they had accepted the duty to provide the mother with temporary accommodation and that they would continue to look for temporary accommodation and to rehouse her, were her application to the court to fail. So on that important question, the judge did at least have corroboration. Whilst he may have been overindulgent in his evaluation of her recent evidence, there was not, in my opinion, anything approaching an error of principle that would call for the intervention of this Court.
14.	Mr Twomey's last submission is, in my view, his strongest. He points to the disparity of the statutory entitlement of the mother and father. Because the mother is the primary carer for Lawrence, she has a statutory entitlement to be housed, as the local authority have recognised in their letter. Because the father has no such responsibility, the local authority's statutory duty does not extend beyond advice. Accordingly, the consequence of the transfer of the tenancy from joint names into the mother's sole name will be to expel the father into a world in which he has no statutory entitlement to be housed and has not the means to house himself in private accommodation. The father is a minister in a Pentecostal church. He has a small congregation and a most modest income. The judge, impressed that the father is some 40 years of age, of smart appearance and with previous business experience, seems to have consoled himself against the spectre of the father's homelessness by saying, at paragraph 58 of his judgment:
“Taking into the account the factor that as far as the father is concerned it seems to me that if he wished to, he could obtain more money either from members of his church or by doing some more remunerative work, the fact that I am allowing this appeal is not fatal in any way to his obtaining some accommodation, although I do bear in mind at the present time that he does not have the wherewithal to put down a deposit.” 
15.	It does seem to me as a generalisation that in weighing the respective resources which each of the parties to the marriage has (section 25(2)(a)), and in weighing their respective needs (as the judge is bound to do under section 25(2)(b)), the mother's need as the primary carer can be said to be offset by her resource as the parent with the statutory entitlement to be housed. The other side of the same coin would be to say that the father has an enhanced financial need by virtue of the fact that he has no statutory entitlement to be housed.
16.	So, in the end, we have to pose the question whether the scant emphasis given by the judge to this important consideration entitles us to intervene on the basis that he has left out of account an important consideration or has otherwise arrived at a decision that is wholly wrong. In weighing that question, I think considerable emphasis should be given to the fact that this was an extempore judgment, given at the end of a long court day. It is perfectly evident that the judge regarded the case as difficult and finely balanced. It is clear from his extensive reasons that he had regard to all relevant factors. It is easy to criticise either the ordering or the expression of an oral extempore judgment, and it would in my opinion be unfair to the judge to say that he left this consideration out of account or, alternatively, that he arrived at a conclusion that was plainly wrong. I would accordingly uphold his decision and dismiss this appeal.
17.	However, there are two things that I would say in conclusion. The first is that the husband has undoubtedly been unlucky in the conclusion. Had this case been litigated under modern rules, it would have been hard indeed for Judge Barnett to have upset the carefully considered judgment of District Judge Cole. The case would have ended there. The appeal under ordinary appellate principle would have failed in the county court.
18.	The second and quite unrelated observation is that where a couple have occupied a family home under a secure tenancy granted by a housing association for many years, and then find that they are unable to continue to live together as a family, I would have thought that the first sensible step would be an approach to the housing association, explaining the development, explaining that they no longer have need, either of them independently, for a four-bedroom family unit, but that each of them has a separate need for much smaller accommodation. In some instances it may be possible thereby to negotiate a re-arrangement that releases to the housing association the four-bedroom family unit and allows each of the parties to obtain security in relation to separate and smaller units that reflect the sad breakdown of family life. It is by no means clear that that was attempted in this case. Instead, the parties have embarked on litigation which has been arduous and prolonged and all at public expense.
19.	But the order that should go today, in my opinion, is an order granting permission to appeal, but dismissing the appeal itself.
20.	MR JUSTICE MORLAND: I agree.
Order: Appeal dismissed; no order for costs save for detailed assessment.