H (a Child), Re

For permission to appeal, a real prospect of success means a realistic prospect rather than a fanciful one. Permission may be granted where an unusual child-arrangements order raises arguable questions about the ambit of discretion, the interaction between a residence condition under section 11(7) of the Children Act and jurisdiction over occupation of the home, or disproportionate interference with a parent’s home and private life. The permission stage identifies an arguable case and does not determine the substantive merits.

The mother sought permission to appeal an Oxford County Court order made by His Honour Judge Crawford QC. The order required the child, S, to remain at the matrimonial home while residing with the father for three days each week and with the mother for four days, with separate household areas carved out within the home. The father had another home. The mother argued that the order exceeded the ordinary ambit of discretion, unlawfully regulated occupation of the home under section 11(7) of the Children Act, and disproportionately interfered with her home and private life. The father contended that the order was an unusual but permissible exercise of discretion. The central issue was whether there was a real prospect of success or another compelling reason for an appeal.

1. Permission test. Lord Justice Ward held that a real prospect of success means a realistic prospect rather than a fanciful one. Permission may also be granted where there is some other compelling reason.
2. Arguable grounds. The proposed appeal raised arguable issues suitable for consideration by the full court. These included whether an order requiring the father to occupy part of the matrimonial home for three nights each week, despite having another home, exceeded the ordinary ambit of the judge’s discretion.
3. The mother also had an arguable jurisdictional point. If the arrangement operated as a condition of residence under section 11(7) of the Children Act, the full court could consider whether that provision authorised an order regulating occupation of the home, said to be a matter falling within the jurisdiction conferred by the Family Law Act. The asserted inconsistencies in the judge’s reasoning and the alleged disproportionate interference with the mother’s home and private life were also suitable matters for consideration.
4. Although the father’s submission that the judge had exercised a broad discretion in an unusual case had force, the mother had shown an arguable point with a realistic prospect of success. Permission to appeal was therefore granted. The appeal was directed to be heard by three judges, including at least one Lord Justice of the Family Division. Mediation was to be pursued, further medical evidence was directed, and costs were costs in the appeal.

• Court of Appeal (Civil Division) — On 18 July 2002, Lord Justice Ward granted permission to appeal and directed that any appeal be heard by a three-judge court.
• Oxford County Court — His Honour Judge Crawford QC made an unusual shared-residence order, probably on 24 April 2002. The order had not yet been drawn when permission was sought.