S (Children), Re

An application for permission to appeal should be refused where it has no realistic prospect of success. The Court of Appeal will not reopen long-concluded care proceedings merely because a litigant alleges that documents were missing or suppressed. An appellate court should not interfere with a discretionary refusal to set aside an order unless there was a misdirection or other error and the conclusion was plainly wrong. A judge may also refuse to entertain further similar applications where they form part of a persistent attempt to reopen historic proceedings without an arguable legal basis.

The applicant, the father of four children, sought permission to appeal an order made by His Honour Judge Tyzack QC in the Truro County Court on 29 June 2001. The order refused an application to set aside earlier care and contact orders. The applicant alleged that relevant documents had been omitted or deliberately suppressed during the original proceedings.

The care order had been made in 1994, and freeing orders had subsequently been made in respect of the three eldest children. The central issue was whether Judge Tyzack had been entitled, in the exercise of his discretion, to refuse the further application and decline to entertain similar attempts to reopen the proceedings.

Lord Justice Thorpe dismissed the application for permission to appeal and made no order for costs.

1. The applicant’s true objective was to challenge the care order made in 1994, notwithstanding that the immediate application concerned the later refusal to set aside the orders. The alleged omission of the court welfare officer’s report did not establish that the report had not been before the original judge. The other documents concerning the applicant’s housing application did not appear particularly relevant to the original determination.
2. The refusal to set aside was a discretionary decision. The Court of Appeal’s role was limited. There was no demonstration that Judge Tyzack had misdirected himself or otherwise erred, and his conclusion could not be characterised as plainly wrong.
3. A judge was entitled to decline to entertain further similar applications where the litigant was pursuing a persistent campaign to reopen historic care proceedings. The passage of time and the children’s changed circumstances made the attempt to reverse what had occurred wholly unrealistic. The judge’s reported indication that no further similar applications would be heard was therefore not open to criticism.
4. The Court of Appeal’s permission function was confined to admitting applications with a realistic prospect of success. This application fell nowhere near that threshold and was dismissed.

1. Court of Appeal (Civil Division) — In [2002] EWCA Civ 1614, Lord Justice Thorpe dismissed the application for permission to appeal and made no order for costs.
2. Truro County Court — His Honour Judge Tyzack QC refused, by order dated 29 June 2001, the applicant’s application to set aside the earlier family orders and declined to entertain further similar applications.