T (Children)

On a renewed application for permission to appeal, the court must ask whether the proposed appeal has a realistic prospect of success. The assessment concerns the order under challenge and the evidence before the lower court. Compassionate circumstances, subsequent improvements or continuing related proceedings do not themselves create a realistic prospect. Where the lower court’s evaluative decision was supported by extensive professional evidence and no viable basis for appeal is shown, the application is hopeless and should be dismissed.

Mrs T renewed her application for permission to appeal an order made by His Honour Judge Bond in the Bournemouth County Court on 26 February 2001. The order arose from applications concerning care, freeing and section 34 orders relating to her three children.

The lower court had considered evidence concerning domestic abuse, Mrs T’s intermittent psychiatric problems and professional assessments of her ability to care for the children. Mrs T relied on her love for the children, improvements she had made and continuing county court proceedings, including an application concerning contact. The central issue was whether the proposed appeal had a realistic prospect of success.

The renewed application for permission to appeal was dismissed.

1. Applicable question. The court’s task was to determine whether Mrs T had any realistic prospect of success in an appeal against the order made on 26 February 2001. The court had no wider appellate issue to resolve on this application.
2. Assessment of the lower court’s decision. Judge Bond had heard extensive evidence. He accepted that Mrs T loved the children and had made great improvements, but also accepted the evidence of the child psychiatrists and social workers that she did not fully understand what was required or have the capacity to provide it. Although she had potential to change, the evidence was that she could not, or was unlikely to, change quickly enough to care for the children.
3. Result. On the evidence before the lower court, the order was realistically inevitable. Mrs T’s distress and the existence of continuing proceedings, including a forthcoming contact application, could not alter the absence of a realistic prospect of success in this appeal. The application was therefore hopeless and was dismissed. The formal order was: application dismissed.

• Court of Appeal (Civil Division): On 18 July 2001, Lord Justice Thorpe dismissed Mrs T’s renewed application for permission to appeal: [2001] EWCA Civ 1332.
• Bournemouth County Court: On 26 February 2001, His Honour Judge Bond made orders concerning care, freeing and section 34 applications relating to the children.