P (Children), Re

Permission to appeal should be refused where the proposed appeal has no realistic prospect of overturning material findings of fact. An appeal is not a retrial. A first-instance family judge’s assessment of the parties’ attitudes, the likely emotional effect of contact on the children, and the children’s ability to have their needs met will not be disturbed where the findings are properly reasoned and unassailable. The court should assess the substance of the proposed grounds rather than revisit the evidence. In determining contact, the judge must apply the statutory welfare checklist.

A grandfather applied for permission to appeal against an order of His Honour Judge Bradbury dismissing his application for contact with two grandchildren and directing that he should not make a further application without the court’s permission. The lower court had heard evidence from the family, court welfare officers and the grandfather. A first welfare report was rejected as inadequate, and the second was given reduced weight because the judge considered that the officer had not retained an open mind.

The proposed appeal alleged unfairness, inadequate welfare evidence, excessive reliance on historical disputes, mishandling of allegations, and insufficient consideration of supervised contact and the grandfather’s health. The central issue was whether the proposed appeal had a reasonable prospect of success.

1. Permission to appeal refused. The court’s task was to decide whether the proposed appeal had a reasonable prospect of success. It was not required to conduct a retrial.
2. The lower court’s material findings were based principally on the judge’s own assessment of the evidence and of the parties while giving evidence. The judge had treated the second welfare report with substantially reduced weight because of reservations about the officer’s approach. The findings did not depend materially on accepting that report.
3. The findings that the mother’s anxiety was genuine, that the children would be adversely affected by being aware of it, and that the grandfather was not capable of meeting their needs were findings open to the trial judge on the evidence. The Court of Appeal regarded them as unassailable and found no realistic prospect that an appeal could displace them.
4. The trial judge had properly applied the section 1 checklist. The complaints about past litigation, allegations, expert evidence, supervised contact and the grandfather’s health did not disclose an arguable error sufficient to justify permission.
5. The application for permission to appeal was refused. A transcript of the judgment was supplied to the applicant at public expense.

• Court of Appeal (Civil Division): application for permission to appeal refused.
• Bow County Court: on 31 January 2002, His Honour Judge Bradbury dismissed the grandfather’s application for contact with his two grandchildren and directed that no further application concerning them should be made without the court’s permission.