K (Children), Re

Permission to appeal out of time should be refused where the proposed appeal has no prospect of success and granting permission would not assist the parent or children. In family proceedings, continuity before the judge who has heard the evidence is generally preferable. It is within the judge’s discretion to defer an application to that judge where a review is imminent. A party’s failure to co-operate with welfare investigations or attend the relevant hearing may leave the proposed appeal without any prospect of success. The appellate court should not grant permission to challenge an order which was favourable to the applicant. An existing contact order remains in force unless discharged or varied by a competent court.

A father sought permission to appeal out of time against several orders made during prolonged private children proceedings concerning residence, contact, school choice and restrictions on further applications. The orders had been made by His Honour Judge Elystan Morgan and His Honour Judge Hughes in the Warrington County Court. The father had not co-operated with a further court welfare investigation and had not attended a subsequent hearing. The central issue was whether any of the proposed appeals had sufficient prospects of success to justify permission, particularly given the delay and the procedural history.

Lady Justice Hale dismissed the applications. The proposed appeals were substantially out of time, and none had any prospect of success. Granting permission would not assist either the father or the children.

1. The challenge to the residence order could not proceed. The father had accepted the arrangement at the time because contact was to continue, and the application was made long after the order.
2. In family proceedings, it is generally preferable for continuing matters to remain before the judge who has heard the evidence and knows the history. It was therefore within Judge Hughes’s discretion to adjourn the father’s application to Judge Elystan Morgan, particularly as a review was due shortly.
3. The order made on 31 July 2000 directing a trial of the father’s application and a further welfare report was favourable rather than adverse. The father then declined to see the court welfare officer and failed to attend the later hearing. Those decisions disadvantaged the investigation and left factual issues unresolved. The appellate court could not speculate about what might have happened had he co-operated.
4. The court noted the restrictions imposed under Children Act 1989, including the orders under section 91(14) and the restriction on further applications under section 8. The Official Solicitor’s criteria were not met. The contact order remained in force because it had not been discharged, although the father had to consider carefully what steps might restore contact.

Applications dismissed.

• Court of Appeal (Civil Division) — Lady Justice Hale refused permission to appeal out of time and dismissed the applications.
• Warrington County Court — Orders were made concerning the children’s residence, contact, school, variation applications and restrictions on further applications.
• Warrington County Court — His Honour Judge Hughes later dismissed an application to vary contact, imposed a two-year restriction on further applications under section 8, and varied contact to alternate weekends. That order was not separately appealed.