S B W C & K (Children), Re

A renewed application for permission to appeal should be adjourned for an inter partes hearing where the proposed grounds disclose a sufficient arguable basis and the respondent has not yet had an opportunity to answer them. The court should confine the adjourned hearing to permission and should not determine the appeal at that stage. Where the lower judge’s refusal of permission included oral explanations, the transcript of the relevant exchanges should be obtained for the hearing.

This was a renewed application for permission to appeal from a decision of the High Court of Justice, Family Division, before Mrs Justice Black. The proposed appeal challenged a finding that an incident of abuse had occurred on Christmas Day, rather than on either of two other dates. The applicants argued that the Christmas Day case had not been advanced during the trial and was inconsistent with witness evidence and video material. The central issue was whether those criticisms justified an inter partes hearing on permission.

Lord Justice Thorpe considered that the criticisms raised by the applicants disclosed just enough arguable material to justify a hearing on notice. The criticisms included the contention that the Christmas Day allegation had not been put by the local authority during the long trial and had originated in written submissions sent to the judge after the trial had ended. The applicants also relied on an alleged inconsistency between the judge’s theory and Mrs West’s evidence, together with points arising from the video.

The court did not determine whether the finding of abuse was correct. Its decision was confined to the procedural question whether the renewed application should proceed to an inter partes hearing, at which the local authority’s counsel could respond to the submissions.

1. The application for permission to appeal was adjourned to a hearing on notice before two judges, preferably including Lord Justice Thorpe.
2. The transcript of the exchanges between counsel and the judge when permission had previously been refused was to be obtained and made available at the adjourned hearing.
3. The guardian could be represented at the inter partes permission hearing only if the guardian’s solicitors gave Lord Justice Thorpe reasons for the proposed involvement of a third counsel.

The President agreed with Lord Justice Thorpe.

• Court of Appeal (Civil Division): The renewed application for permission to appeal was adjourned to a hearing on notice. [2002] EWCA Civ 246
• High Court of Justice, Family Division: Mrs Justice Black refused permission to appeal after making the challenged factual finding; no separate citation is stated in the judgment.