S (Children), Re

In child-contact proceedings, permission to appeal may be refused where a lower judge failed to determine a transfer application or give reasons, if an appeal would be a sterile formality and disproportionate to any practical benefit. A judge may retain conduct of the case where the lower court can deal with it effectively and transfer would cause delay without advantage. Standard directions and further welfare reporting should be left to the judge managing the case where appellate interference would add nothing. Compliance with contact orders is required equally of both parents. Penal notices may be considered, but committal is a last resort and can be counterproductive; the court must adopt a proportionate balance between encouragement and coercion.

The father sought permission to appeal orders made by His Honour Judge McIntyre in the Reading County Court concerning contact between him and his three young children. The proceedings had involved repeated hearings. The eldest child resisted weekend contact, while the younger children stayed with their father. The father challenged the failure to transfer the proceedings to the High Court and the absence of reasons for that decision. He also challenged the associated case-management directions, including a further CAFCASS report. The central issue was whether an appeal would provide any practical benefit in resolving the contact and compliance difficulties.

Lord Justice Ward dismissed the application for permission to appeal.

1. The judge below ought to have ruled on the application to transfer the proceedings to the High Court and given reasons. Permission was nevertheless refused because an appeal would be a sterile formality and disproportionate to any benefit. Judge McIntyre was entitled to conclude that he could deal with the matter in the Reading County Court. Transfer would probably cause substantial delay and might result in the case being heard by a recorder, without any corresponding advantage.
2. The remaining orders were standard directions for a necessary hearing. Statements had been ordered, together with a supplemental report from the CAFCASS officer. Her assistance might be vital, and the listed day might be needed to address the family’s difficulties. There was therefore no sufficient basis for Court of Appeal intervention.
3. The judgment gave guidance on enforcement. Court orders are made to be obeyed, and the obligation applies equally to mothers and fathers. A penal notice may be an initial enforcement step. Committal is a matter of last resort and may be wholly counterproductive. The judge must assess carefully whether encouragement, coercion, or a combination of both is appropriate.
4. The case should be managed sympathetically but firmly by Judge McIntyre, with appropriate consideration of the children’s welfare and any necessary professional assistance. The Court of Appeal’s observations were not intended to bind him in the conduct of the hearing. The application for permission to appeal was dismissed.

1. Court of Appeal (Civil Division): On 25 March 2002, Lord Justice Ward dismissed the application for permission to appeal: [2002] EWCA Civ 449.
2. Reading County Court: His Honour Judge McIntyre varied an earlier contact order on 21 January 2002. He did not rule on an application to transfer the proceedings to the High Court and gave no reasons for that omission.