Re S (A Child)

The Court of Appeal’s permission jurisdiction does not provide a means of challenging an order merely because circumstances have changed since it was made. An order made in a litigant’s absence should ordinarily be challenged promptly in the lower court under the applicable procedure, supported by a good reason for non-attendance and a realistic prospect of a different outcome. A subsequent change of circumstances is relevant only where the stringent conditions identified in Barder v Caluori are satisfied. The court will consider delay, its explanation, the merits and prejudice to others when deciding whether to permit a very late appeal.

The father and mother of a child had acquired a home in joint beneficial ownership. Following the breakdown of their relationship, the mother applied under Schedule 1 to the Children Act 1989 for financial provision for the child.

The father did not attend the financial provision hearing, although he knew of it. The Bristol County Court proceeded in his absence and ordered him to transfer his interest in the home, subject to a charge securing payment and a share of future equity. The order preserved the home for the child during minority or full-time education while recognising the father’s eventual entitlement to his share.

Years later, the father sought permission to appeal out of time, relying on his absence, alleged lack of jurisdiction and changes in the child’s and mother’s circumstances.

1. Application refused. The delay was enormous and had no satisfactory explanation. An appeal would cause substantial prejudice and had no real prospect of success.
2. A litigant dissatisfied with an order made in their absence should apply promptly to the lower court to set it aside. The applicant knew of the hearing, and the circumstances disclosed no basis for a very late appeal.
3. Schedule 1 to the Children Act 1989 gives the court broad power to order the transfer or settlement of property for the benefit of a child of unmarried parents. It does not generally rearrange the parents’ property rights for life. Provision will ordinarily be structured to last while the child is growing up.
4. The county court was entitled to preserve the home for the child while she was a minor or in full-time education, while providing for the division of the proceeds in accordance with the parties’ established equities.
5. A change in circumstances after an order was made does not itself justify an appeal against an order that was correct when made. The stringent conditions in Barder v Caluori [1988] AC 20 must be met: the change must have been unforeseeable or not reasonably foreseeable, occur within a comparatively short time, and be followed by an application without delay. Those conditions were not satisfied.
6. The formal order was that permission to appeal was refused. A transcript was ordered at public expense and a copy provided to the applicant.

1. Court of Appeal (Civil Division): Permission to appeal out of time against the Bristol County Court order of 10 June 1994 was refused.
2. Bristol County Court: His Honour Judge Jack QC proceeded in the father’s absence and made an order under Schedule 1 to the Children Act 1989 concerning the family home and financial provision for the child.