B (A Child)

Permission to appeal may be refused where an injunction was dismissed for want of evidence and the challenge has no reasonable prospect of success. A restriction requiring permission before further applications under section 91(14) of the Children Act warrants scrutiny where it appears to have been made on the court’s own motion without notice or an opportunity to oppose it. Costs must be allocated to the correct application and parties. A separate section 8 application involving only one respondent should not be treated as though it were a multi-party injunction application. Costs claimed require proper scrutiny and mitigation.

Mr B sought permission to appeal two orders made by His Honour Judge McKittrick in the Peterborough County Court on 21 November 2001. One order dismissed for want of evidence an injunction application against his former wife, her partner and a solicitor. The other dismissed a section 8 application against his former wife seeking production of his ten-year-old daughter’s medical records. The latter order also imposed a three-year restriction under section 91(14) of the Children Act and ordered Mr B to pay £1,500 in costs. The central issues were whether either order had a reasonable prospect of being successfully challenged and whether the restriction and costs order had been properly made.

Disposition and reasons

1. Injunction application. Lord Justice Thorpe dismissed permission to appeal the order dismissing the injunction application. The judge below had dismissed it for want of evidence, and there was no reasonable prospect of a successful challenge.
2. Section 8 application. Permission to appeal the order dismissing the application for production of medical records was adjourned for a further oral hearing on notice before a two-judge court, with an appeal to follow if permission were granted. Lord Justice Thorpe observed that the application may have sought the wrong remedy. A periodic report from the mother and an annual photograph might have provided a more appropriate basis for maintaining indirect involvement in the child’s life.
3. Section 91(14) restriction. The court was doubtful about the validity of the three-year restriction because the transcript suggested that no application for it had been made and that it had been imposed on the judge’s own motion without giving Mr B an opportunity to oppose it.
4. Costs. The costs order appeared to conflate two separate applications and three respondents with a section 8 application involving only the former wife. The costs should have been dealt with in the order dismissing the injunction application. A section 8 application would not ordinarily expose an unsuccessful applicant to costs, and the sum sought should not have been allowed without inquiry or mitigation.

Both parties were to receive the transcript at public expense.

1. Court of Appeal (Civil Division) refused permission to appeal the injunction order and adjourned the permission application concerning the section 8 order for a further hearing before a two-judge court.
2. Peterborough County Court on 21 November 2001 dismissed the injunction application for want of evidence, dismissed the section 8 application, imposed a three-year restriction under section 91(14) of the Children Act, and made a costs order of £1,500.