Re W (Children)

Permission to appeal in private family proceedings should be refused where no sufficient point of law or principle, and no other compelling reason, is shown. The appellate structure favours finality: ordinarily there should be no more than one appeal, conducted at the lowest appropriate level, save in exceptional circumstances. An appellate court should rarely substitute its discretion for that of a judge who saw and heard the evidence. A different welfare evaluation, even if individual or novel, does not itself justify further proceedings where the judge applied the welfare checklist and made a clear decision focused on the children.

The parents had three children and made cross-applications for residence orders after their separation. A district judge ordered residence with the father and extensive contact for the mother. On the mother's appeal, His Honour Judge Kenny substituted a joint residence order, with the children spending most nights with the mother and substantial time with the father.

The father sought permission to appeal. Permission had been provisionally refused on paper, and the application was renewed orally before the Court of Appeal. The central issue was whether the application disclosed a sufficient point of law or principle, or any other compelling reason for a further appeal.

The application for permission to appeal was refused.

1. The application was subject to section 55 of the Access to Justice Act 1999. No sufficient point of law or principle, and no other compelling reason, was identified. The Court therefore found no basis for admitting a further appeal.
2. The restructured appellate system embodied an important principle of finality. There should ordinarily be no more than one appeal in a case, except in exceptional circumstances, and an appeal should be heard at the lowest appropriate level. This principle has particular force in family litigation, which must eventually end.
3. Judge Kenny had treated the successful pre-separation family arrangement as the starting point for considering the children's future, while asking what each parent could contribute and applying the welfare checklist. His approach was an individual and possibly novel welfare evaluation, but the Court identified no error of law or principle in it.
4. An appellate judge should rarely substitute a discretion where the judge below saw and heard the witnesses and reached a discretionary welfare conclusion. Judge Kenny had directed himself to that restraint. His judgment was clear, reflected experience in the field, and properly emphasised the children's welfare and happiness rather than a contest between the parents.

Further proceedings within the family were not sanctioned. Order: permission to appeal refused.

1. Court of Appeal (Civil Division): The father's renewed application for permission to appeal was refused.
2. His Honour Judge Kenny: On the mother's appeal, the district judge's residence order was varied to a joint residence order.
3. District judge, Bedford County Court: Residence was ordered to the father, with extensive contact to the mother.