S-M (Children), Re

In family proceedings, an application for permission to appeal may be adjourned to a larger constitution where there is an arguable case that the decision below was plainly wrong, although that threshold is high. A parental responsibility application should be brought to a full and proper determination rather than left in repeated general adjournments. An order requiring delivery of school photographs may be a specific issue order. It can entitle a parent to obtain existing photographs at the parent’s own expense, despite lacking parental responsibility and despite objection by the other parent. Public bodies named in the order should facilitate compliance.

A father sought parental responsibility, residence and contact with two daughters who lived with their blind mother. After lengthy proceedings, a family assistance order proved ineffective and an indirect-contact consent order was not complied with. On 1 May 2002 Hogg J restated the arrangements in firmer terms, authorised the father to seek school photographs directly, adjourned his applications for parental responsibility, residence and further contact generally with liberty to restore, and refused permission to appeal. He applied out of time to the Court of Appeal. The issues were whether the first-instance decision was arguably plainly wrong, whether the parental responsibility application should be determined, and what effect the school-photograph provisions had.

The extension of time was granted. The application for permission to appeal was adjourned with notice to the respondent, before a court consisting of at least two Lords Justices, one with experience of Family Division jurisdiction. The appeal was to follow if permission were granted.

1. Permission to appeal could be granted only if the court was satisfied that the decision below was plainly wrong. That was a high hurdle. Nevertheless, there was at least an arguable case that the first-instance judge should have adopted a more robust approach, although the unusual circumstances in which the matter came before her might have hampered proper consideration.
2. The father’s application for parental responsibility had been repeatedly adjourned. It was desirable that it should be fully and properly determined. He could restore the application immediately, and it would be desirable for it to be heard by Munby J if available, given his earlier involvement.
3. The provisions concerning school photographs constituted a specific issue order. The father was entitled, at his own expense, to receive existing photographs, irrespective of his lack of parental responsibility and the mother’s objection. The education authority and Children Centre should facilitate compliance where photographs existed.
4. The judgment was to be transcribed at public expense and supplied to both parties and CAFCASS Legal.

1. Court of Appeal (Civil Division) — In [2002] EWCA Civ 1387, Lady Justice Hale granted an extension of time and adjourned the application for permission to appeal before a larger constitution.
2. High Court, Family Division — On 1 May 2002, Hogg J restated the indirect-contact arrangements, authorised direct requests for school photographs, adjourned the substantive applications with liberty to restore, and refused permission to appeal.