Re: B (Children)

On an application for permission to appeal, the Court of Appeal will not interfere with a trial judge’s findings of fact or personality where the hearing was fair and conscientious. A discretionary child-contact order will stand where the judge has reached a permissible welfare-based balance. Permission may be refused where the proposed appeal is hopeless, even though future contact arrangements remain capable of development through professional assistance and review.

Long-running proceedings concerned Mr Peter Middleton’s contact with his two children, Peter and Rebecca. During a two-day hearing, his counsel withdrew because the professional relationship had broken down, and Mr Middleton then acted in person. On 8 August 2001, Judge Whitburn Q.C. continued indirect contact with Rebecca, excluded Peter from the order because of his age and developing autonomy, included Mr Middleton’s mother in the regime, and directed a review. The judge had considered ending all contact but retained indirect contact on the narrowest balance, with possible future supervised direct contact. Mr Middleton sought permission to appeal.

Lord Justice Thorpe dismissed the application for permission to appeal.

1. The transcript disclosed a fair and conscientious trial. Mr Middleton’s lack of confidence in Judge Whitburn was subjective and unsupported by evidence of unfairness.
2. The judge had made findings of fact and findings about Mr Middleton’s personality. The Court of Appeal could not properly interfere with those findings.
3. The judge had exercised his discretion on contact by balancing Rebecca’s long-term interests. Although he had been minded to terminate all contact, he had maintained indirect contact and therefore tipped the balance in Mr Middleton’s favour. The proposed appeal was described as wholly hopeless.
4. The order left open the possibility of supervised direct contact if Dr Halse could develop that prospect satisfactorily. The practical route forward was collaboration with the professionals rather than continued challenges to the judge or further appeals.

Order: Application dismissed.

• Court of Appeal (Civil Division): On 14 March 2002, Lord Justice Thorpe dismissed Mr Middleton’s application for permission to appeal.
• Newcastle upon Tyne County Court: On 8 August 2001, Judge Whitburn Q.C. continued indirect contact with Rebecca, excluded Peter from the order, included Mr Middleton’s mother in the contact regime, and directed a review.