H (Children), Re

Permission to appeal requires a real prospect of success or another compelling reason for the appeal to be heard. In welfare and contact cases, the trial judge is ordinarily best placed to assess the evidence, having seen and heard the witnesses. Permission should therefore be refused unless the proposed appeal identifies a plainly wrong application of the law, reliance on an irrelevant matter, failure to consider a relevant matter, or some other improper exercise of discretion. Where the judge has properly applied the statutory welfare checklist and made findings open to him on the evidence, strong disagreement with those findings is insufficient.

A grandmother applied for permission to appeal against an order of Mr Recorder Maw in the Lincoln County Court dated 31 May 2002. Her application for contact with three grandchildren had been refused after the recorder made adverse findings about her allegations concerning the children’s parents, her conduct, and the possible effect of continued contact on the children and family.

The Court of Appeal considered whether the proposed appeal had a real prospect of success or whether there was another compelling reason for it to be heard. The central issue was whether the recorder had made an appealable error in his factual assessment, welfare evaluation or exercise of discretion.

1. Application refused. The grandmother’s application for permission to appeal was dismissed.
2. Permission to appeal could be granted only if the appeal had a real prospect of success or there was some other compelling reason for it to be heard.
3. In contact and other welfare cases, the trial judge is in a uniquely strong position because he sees and hears the witnesses and absorbs the evidence as it unfolds. An appeal therefore requires an identifiable error, such as a plainly wrong application of the law, reliance on a matter that should have been excluded, failure to consider a matter that should have been considered, or another wrongful exercise of discretion.
4. The recorder had made findings of fact that were for him to make. He had also addressed the welfare checklist under the Children Act 1989, treating the children’s welfare as paramount. There was no realistic basis for arguing that he had erred in law, failed to take account of a relevant matter, or exercised his discretion improperly.
5. The grandmother’s strong feelings and disagreement with the recorder’s conclusions could not establish a real prospect of a successful appeal or another compelling reason for appellate intervention.

• Court of Appeal (Civil Division): On an application for permission to appeal, refused permission and dismissed the application.
• Lincoln County Court: Mr Recorder Maw refused the grandmother’s application for contact on 31 May 2002.