K (A Child), Re

An application for permission to appeal should be refused where the proposed appeal has no realistic prospect of success. A parent subject to a Children Act 1989, section 91(14) restriction must obtain leave before seeking discharge of a care order. Permission cannot be used to reopen the legitimacy of an original care order where that issue was already challenged in the Court of Appeal and the earlier application for permission was dismissed. The court’s task is confined to assessing prospects on the proposed appeal against the later order.

Mrs F sought permission to appeal orders made by Bracewell J in the Family Division on 9 July 2002. The orders dismissed both her application for leave and her application to discharge a care order concerning her 16-year-old son. A restriction imposed under the Children Act 1989, section 91(14), prevented her from issuing the discharge application without leave until 8 October 2004. Her proposed grounds alleged a fundamental miscarriage of justice or excess of jurisdiction, contending that earlier courts had failed to consider the Education Act and the Children and Young Persons Act. The central issue was whether an appeal had any realistic prospect of success.

Application dismissed. Lord Justice Thorpe treated the matter as an application for permission to appeal, rather than a fresh challenge to the original care order.

1. The restriction imposed under section 91(14) of the Children Act 1989 prevented a further application for discharge until 8 October 2004 unless leave was obtained. The first-instance judge dealt with both the application for leave and the proposed discharge application. The Court of Appeal’s task was limited to deciding whether an appeal against that judgment had a realistic prospect of success.
2. The applicant’s substantive complaints attacked the validity of orders made in 1998 and 1999, including the original care order. Its legitimacy had already been challenged in the Court of Appeal, where an application for permission to appeal had been considered and dismissed on 12 July 1999. The present application could not provide a further route for re-litigating those matters.
3. The renewed allegation that the courts had failed to consider the Education Act or the Children and Young Persons Act could not overcome that procedural and appellate history. The proposed appeal therefore had no realistic prospect of success. Any possible complaint that the domestic courts had breached the applicant’s rights was outside the limited question before the court and might be pursued, if at all, in the European Court of Human Rights.

Order: Application dismissed.

• Court of Appeal (Civil Division) — [2002] EWCA Civ 1361; dismissed the application for permission to appeal because the proposed appeal had no realistic prospect of success.
• Court of Appeal — On 12 July 1999, dismissed an earlier application for permission to appeal challenging the legitimacy of the original care order.
• Family Division (Bracewell J) — On 9 July 2002, dismissed both the application for leave to issue a discharge application and the application to discharge the care order.