M (Children), Re

On an application for permission to appeal, permission should be granted where the arguments require fuller and more profound consideration than a short permission hearing permits and warrant investigation by a full court. The possibility that the appeal may ultimately fail because the lower court exercised a difficult discretion does not prevent permission being granted. The court may also extend time and give directions for the appeal.

This was an application by Mr Gold for permission to appeal an order made by Holman J in the Family Division on 15 February 2002 concerning the care of M, a child almost three years old. The judge declined to make care or supervision orders after rejecting the case that the section 31 threshold had been met. He also had to decide whether M should remain with Mr Gold or return to his father, Mr Cummings. The proposed appeal challenged the judge’s rejection, or insufficient reasoning in rejecting, the combined opinions of three child-centred experts. The central question was whether the proposed arguments warranted consideration by a full Court of Appeal.

Permission granted. Lord Justice Thorpe treated the application as raising the only issue of whether the proposed appeal should proceed. He recognised that the appeal might ultimately fail because the experienced first-instance judge had reached a discretionary conclusion in a difficult case. That possibility did not determine the permission application.

1. The arguments advanced on behalf of Mr Gold concerned the judge’s rejection, or insufficient reasoning in rejecting, the combined opinions of three experts who were directly involved in the litigation and focused on the child’s welfare.
2. Those arguments required fuller and more profound consideration than could be given at the relatively brief permission hearing. The guardian’s position also indicated sufficient concern to justify investigation by a full court.
3. A slight extension of time was granted. The appeal was directed to a court of three Lords Justices, with a one-day time estimate.
4. The appellant was directed to lodge transcripts of the relevant oral evidence of Dr Black, Dr Freedman and Dr Arsen at least 14 days before the hearing. Costs were reserved.

The court made no determination on the merits of the proposed appeal or on the correctness of the first-instance welfare decision.

• Court of Appeal (Civil Division): On 11 March 2002, Lord Justice Thorpe granted permission to appeal, extended time slightly, directed a three-Lord-Justice hearing and ordered the lodging of relevant expert-evidence transcripts. Costs were reserved.
• Family Division: Holman J’s order of 15 February 2002 declined care or supervision orders and rejected the case that the section 31 threshold had been met. No citation for that order is stated in the judgment.