W (a child), Re

In child-care proceedings, proposed complaints about a later order must be assessed in the context of earlier orders in the same proceedings, particularly where those orders were unchallenged and established an operative regime. Where criticisms of the first-instance decision merit investigation but permission to appeal is finely balanced, the Court of Appeal may adjourn the permission application for an on-notice hearing and require the relevant judgment or transcript. An adjournment for that purpose does not determine permission or the substantive appeal.

The application concerned E, born in October 1997, the only child of the applicant father’s relationship with the respondent mother. On 3 May, His Honour Judge Brandt ordered that care transfer to the father at 4 pm on 10 May. That order followed unchallenged orders made on 28 February and 16 April. The latter order provided for a trial of the father’s adjourned residence application on written statements.

An application made on 9 May sought permission to appeal and a stay of execution. The stay was refused that day. At the oral hearing on 13 May, the central question was whether the permission application should proceed, having regard to criticisms of the first-instance decision and further material produced by the applicant.

The application for permission to appeal was adjourned for an on-notice hearing. No substantive appeal was determined.

1. The Court of Appeal noted that the stay application had already been refused and was not properly before the court. The applicant’s misunderstanding of that procedural position did not alter the issue being determined.
2. Any challenge to the order of 3 May had to be assessed in the context of the earlier hearings and orders. The earlier orders had not been challenged. One had established a clear contact regime which the mother had deliberately disobeyed. The other had set the procedure for trial of the father’s residence application.
3. The criticisms advanced on behalf of the mother’s position warranted further investigation. They included the judge’s treatment of the mother’s approach to schooling and the absence of reference to the child’s lack of previous contact with the proposed household.
4. Although the application was finely balanced and the court remained hesitant, the appropriate course was to grant a further hearing on notice. The matter was listed for 15 May, with the first-instance judgment to be provided beforehand. If permission were then granted, the appeal would be determined immediately.

1. Court of Appeal (Civil Division): The application for permission to appeal was adjourned for an on-notice hearing on 15 May 2002. The stay application had been refused on 9 May 2002.
2. Family proceedings before His Honour Judge Brandt: On 3 May 2002, an order was made transferring care of the child to the applicant father.