B (A Child), Re

In children proceedings, an appeal may cease to raise a live and justiciable issue after the child’s circumstances have materially moved on. Permission to appeal against an order made many years earlier may therefore be refused where the applicant provides no satisfactory explanation for the delay and the proposed challenge is hopeless. The court may take account of the child’s age and impending majority when assessing whether an appeal remains practically and legally justiciable.

The applicant sought permission to appeal from an order made by Her Honour Judge Fisher in the Nottingham County Court on 23 May 1994. The order refused staying contact with his severely handicapped child, who had been placed in respite care when the mother became overwhelmed, but permitted Saturday contact at a local contact centre.

The application was made more than six years after the order. The applicant relied on recently obtained evidence said to undermine the reliability of the consultant involved in the 1994 inquiry. He did not attend the Court of Appeal hearing. The central issue was whether permission should be granted despite the delay and the child’s changed circumstances.

1. Application refused. Lord Justice Thorpe described the application as hopeless and refused permission to appeal.
2. The order under challenge had been made on 23 May 1994, more than six years before the application was considered. The applicant’s papers provided no explanation for why permission was sought so long after the order.
3. In children cases, issues are ordinarily live and justiciable only within the short period after the trial court’s decision. Children’s lives and circumstances move on. A child who was about 10 when the order was made would, six years later, be approaching majority. That passage of time materially undermined the practical and legal basis for reopening the contact decision.
4. The proposed reliance on evidence obtained later, alleging that the consultant’s evidence in the 1994 inquiry was unreliable, did not alter the assessment. The application remained incapable of justifying permission in light of the unexplained delay and the changed circumstances.
5. The lower court’s order had followed a finding that the father had a tendency to uncontrollable temper, expressed through aggression and abuse. Staying contact was refused, while Saturday contact at the local contact centre was ordered. The Court of Appeal did not reopen those factual findings.

• Court of Appeal (Civil Division): On 13 February 2001, refused the application for permission to appeal. The judgment is reported at [2001] EWCA Civ 467.
• Nottingham County Court: On 23 May 1994, Her Honour Judge Fisher refused staying contact but ordered Saturday contact at the local contact centre.