J (A Child), Re

Where a hearing is listed and prepared as an interim application, a judge should not finally dispose of the substantive application when material issues have not been properly canvassed and counsel are not ready for a final hearing. Proceeding in that way may constitute a procedural irregularity capable of founding an appeal as an independent right. Permission to appeal may be granted on that ground alone. Granting permission does not indicate that the appeal is likely to succeed.

The mother renewed an application for permission to appeal after permission had been refused on paper. The dispute concerned the residence and removal of a four-year-old child. At a hearing listed for half a day to consider interim residence, His Honour Judge Mitchell heard evidence and made adverse findings against the mother. He apparently dealt with the substantive application, although counsel protested that the case was not ready for a final hearing and material issues had not been fully canvassed. The central issue was whether that procedure arguably constituted an irregularity giving an independent right of appeal.

Lord Justice Ward considered that the procedure below arguably amounted to a procedural irregularity. The hearing had been listed for half a day to consider interim residence, and the mother had not come prepared to deal with all issues relevant to a final determination. Counsel had expressly protested that the matter was not ready for final hearing.

The judge had indicated that disagreement with his conclusions should be pursued through an appeal rather than a further application. Only at the end of the hearing did he state that no further directions were required for the substantive application and that he had dealt with it. In those circumstances, proceeding to final disposal without proper opportunity to address the material issues could found an appeal as an independent right.

1. Permission to appeal was granted on that ground alone.
2. The Court had not examined the specific challenges to the factual findings. Those grounds were not excluded and could be argued on the appeal.
3. Permission was unconditional, but the appeal remained difficult and the grant of permission was not an optimistic forecast of its outcome.

Lord Justice Latham agreed. The order made by His Honour Judge Mitchell on 24 June 2002 was therefore open to appeal.

• Court of Appeal (Civil Division): on renewal of the application, granted unconditional permission to appeal.
• Northampton County Court: His Honour Judge Mitchell made the order under challenge on 24 June 2002 after proceeding from an interim-residence hearing to deal with the substantive application.