S-M & Anor (Children), Re

Permission to appeal in family proceedings requires a sufficient prospect of success to warrant a further order. The court must assess that question by reference to the decisions challenged. Material concerning other events, including later events, does not assist unless it bears on that assessment. An order that has expired may make the proposed appeal misconceived. Orders falling within the proper range of judicial discretion do not ordinarily disclose a sufficient basis for permission.

Mrs S sought permission to appeal against two Family Division orders: a directions order made by Mr Justice Bennett on 23 August 2001 and a six-month family assistance order made by Mrs Justice Hogg on 19 December 2000. The latter order was intended to assist discussion with the children about their paternity and had the consent of the father and the official solicitor, but not Mrs S. The father also had applications for residence and contact. By the Court of Appeal hearing, the family assistance order had expired. The central issue was whether either application disclosed a sufficient prospect of success to warrant a further order.

Lord Justice Thorpe refused both applications for permission to appeal.

1. The directions order made by Mr Justice Bennett was made in unusual circumstances and was manifestly within the range of judicial discretion. It therefore disclosed no sufficient basis for permission to appeal.
2. Mrs Justice Hogg’s family assistance order was also within the range of judicial discretion. By the time of the application for permission, the six-month order had expired, making the proposed appeal manifestly misconceived.
3. The court’s task on an application for permission was to evaluate whether the proposed appeal disclosed a sufficient prospect of success to warrant a further order. Mrs S’s written statement dealt substantially with events outside the Family Division proceedings and with events occurring after the order challenged. It did not bear on that question.
4. The formal order was: permission to appeal refused.

1. Court of Appeal (Civil Division): In [2001] EWCA Civ 1580, Lord Justice Thorpe refused permission to appeal against both Family Division orders.
2. Family Division: Mr Justice Bennett made a directions order on 23 August 2001. Mrs Justice Hogg made a six-month family assistance order on 19 December 2000.