G (Children)

On an appeal from a district judge to a circuit judge, the appellate court reviews the decision below and does not ordinarily hear fresh evidence. A challenge may nevertheless succeed where findings of fact are unsupported by evidence, contradict the evidence, or are against its weight. Where a publicly assisted party cannot obtain necessary evidence or a transcript, the court may consider limited publicly funded assistance if that would promote fairness and the interests of justice.

The applicant father sought permission to appeal directions made by the Portsmouth County Court concerning his proposed appeal against a district judge’s refusal of direct contact with his two sons. The county court judge required him to obtain the district judge’s judgment and declined at that stage to assist him in obtaining it at public expense. By the time the matter reached the Court of Appeal, the judgment had been obtained and the challenge to that direction had become academic. The remaining issue was how the proposed appeal should proceed, including whether limited evidence or transcript assistance might be appropriate.

1. Disposition. The application for permission to appeal the county court judge’s directions was dismissed because the challenge concerning provision of the district judge’s judgment at the father’s expense had become wholly academic. A copy of the Court of Appeal’s judgment was to be provided to both parents at public expense, and the district judge’s judgment was to be placed on the county court file.
2. Appellate method. Following Cordle v Cordle [2002] 1 FLR 207, an appeal from a district judge to a circuit judge is dealt with by reviewing what occurred below, in the same general manner as an appeal to the Court of Appeal, rather than by taking fresh evidence before the appellate judge.
3. Factual findings. That approach does not prevent an appeal based on findings for which there is no evidence, findings that are contrary to the evidence, or findings against the weight of the evidence. The appellate judge must have the material necessary to assess such a challenge.
4. Transcript assistance. Requests for publicly funded transcripts or evidence should not be granted routinely. However, where a publicly assisted party identifies a limited and potentially material part of the evidence, the judge may consider obtaining it at public expense if that would assist the fair determination of the appeal and serve the interests of justice.

• Portsmouth County Court: Her Honour Judge Davies made directions on 27 March 2002 requiring the father to obtain the district judge’s judgment before pursuing his appeal.
• Court of Appeal (Civil Division): The application for permission to appeal those directions was dismissed as academic. The Court gave further guidance on the appellate process and access to limited transcript assistance.