Re: H (Children)

In a family welfare case, the decision about a child’s future is primarily for the trial court, applying welfare as the paramount consideration. An appellate court reviewing that discretionary decision has a limited function. It asks whether there was an error, misdirection, or a conclusion that could not properly be reached in the exercise of discretion. A reasoned and balanced decision on the evidence should not be reopened merely because a disappointed family member seeks a different outcome. Where the papers disclose no arguable defect, permission to appeal should be refused.

Mr P, the grandfather of twins in care, and his wife sought a residence order. The Ipswich Family Proceedings Court refused the application and made a care order in accordance with an adoption plan. Bracewell J refused Mr P’s appeal on 6 April 2001. Mr P then sought permission to appeal to the Court of Appeal, together with an extension of time. The central issue was whether the papers disclosed an arguable error, misdirection, or impermissible exercise of discretion.

Applications refused. Lord Justice Thorpe, sitting as a single judge of the Court of Appeal, refused permission to appeal and an extension of time. The proposed appeal was hopeless and had no identifiable merit.

1. Responsibility of the trial court. In deciding where the future of children should lie, the trial court must apply their welfare as the paramount consideration. The Justices had reached a reasoned decision, and Bracewell J had properly rejected the criticisms made of it.
2. Scope of appellate review. The appellate court has a limited but important function. Whether the review is undertaken by a single judge of the Family Division or by a single judge of the Court of Appeal, it is directed to error, misdirection, or a conclusion that could not be made in the proper exercise of discretion. It is not a rehearing of the welfare merits or an opportunity to substitute a different assessment.
3. Application of the test. Nothing in the papers suggested any semblance of error. The material instead disclosed a balanced discretionary decision on the evidence. The disappointed feelings of a relative could not establish an arguable ground of appeal.

The court noted that refusal of permission exhausted Mr P’s domestic remedies and enabled him to consider an application to the Strasbourg court. The formal order was that permission to appeal and an extension of time were refused.

1. Court of Appeal (Civil Division): On 16 July 2001, Lord Justice Thorpe refused permission to appeal and an extension of time. The application was described as hopeless.
2. High Court of Justice, Family Division: Bracewell J refused Mr P’s appeal on 6 April 2001.
3. Ipswich Family Proceedings Court: On 29 November 2000, the court refused Mr P and his wife’s application for a residence order and granted the local authority’s application for a care order with an adoption care plan.