H-P (Children), Re

After a section 91(14) restraint has been imposed, permission should be assessed by asking whether good case management requires a trial and whether the applicant demonstrates an issue meriting judicial investigation and court time. An appellate court should be very reluctant to interfere with a first-instance discretionary assessment based on the family’s dynamics and the judge’s experience of the case. Practical timing and the child’s need for certainty may independently justify refusal where permission would leave insufficient time for a meaningful hearing.

H-P sought permission to challenge orders made by Johnson J in the Family Division. The orders refused leave to make an application concerning D’s proposed schooling, following a section 91(14) restraint imposed in October 1999 to limit further applications. Johnson J considered the application unconvincing and made at the last minute. By the time the matter reached the Court of Appeal, less than four months remained before the proposed school term began. The central issue was whether permission should be granted in those circumstances.

Lord Justice Thorpe dismissed the application for permission, with costs.

1. Following the imposition of a section 91(14) restraint, the permission decision requires the judge to consider whether, from the standpoint of good case management, there is a need for a trial. The applicant must demonstrate an issue that merits judicial investigation and the use of court time.
2. Johnson J had not specifically directed himself to that modern approach, but he gave firm reasons for refusing permission. He found the father’s explanation for the necessity of a trial entirely unconvincing and considered that the issue had been raised at the last minute as another means of harassing the mother. Those matters involved an assessment of the applicant and the family’s dynamics, informed by the judge’s substantial experience of the case.
3. The Court of Appeal should be very reluctant to interfere with such a discretionary assessment. An appeal succeeding on permission would only secure leave; a fresh application would then require proper preparation and evidence, including potentially evidence from the schools.
4. The timetable was effectively exhausted. There was insufficient practical time before the start of the Michaelmas term for the necessary appellate and fresh application processes. It was also important that the child should not be left in uncertainty and doubt about her schooling. Commencing litigation in those circumstances was unlikely to serve her interests.

For those reasons, the application was unhesitatingly dismissed with costs.

1. Court of Appeal (Civil Division): Lord Justice Thorpe dismissed H-P’s application for permission, with costs.
2. Family Division: Johnson J refused permission on 24 October 2000. The order was apparently repeated on 14 December 2000. The application concerned leave to make an application about D’s schooling, despite the earlier section 91(14) restraint.