T (Children)

Permission to appeal requires a real prospect of success, meaning that the proposed appeal is not fanciful. An apparent material mistake in identifying or relying on evidence, or an insufficient explanation for rejecting important and up-to-date expert evidence, may satisfy that threshold. The court may also consider whether a drastic order and its immediate effects provide a compelling reason for an appeal, even where success is not assured. A stay may continue while the appeal is determined where immediate implementation would cause substantial distress and the appeal is properly arguable.

Two children lived with their mother under a consent order providing reasonable contact with their father. Contact deteriorated, and allegations of physical and sexual abuse were made. The children eventually refused to see their father. The father applied for a change of residence, while the mother sought suspension of contact. After a four-day hearing, the recorder ordered a change of residence, and its implementation was directed to be virtually immediate. The mother sought a stay and permission to appeal, challenging the treatment of joint expert evidence and the recorder’s reliance on a video and transcript concerning the sexual-abuse allegations. The central issue was whether the proposed appeal had a real prospect of success or another compelling justification.

Permission to appeal was granted, and the stay was continued pending determination of the appeal. Lord Justice Ward gave the reasons, and Mr Justice Collins agreed.

1. The real-prospect test was satisfied because the proposed appeal was not fanciful. The recorder had given only a limited explanation for rejecting the important and up-to-date evidence of Dr Newth, whose report predicted serious effects from changing residence and substantial difficulty in managing future contact.
2. There was a further arguable evidential error. The recorder referred to a video and transcript in rejecting the sexual-abuse allegations, but the material before her may have related to the physical-assault allegation instead. The error might have been forgivable in an extempore judgment, but it caused concern because the finding could have influenced the assessment that the mother had prompted the allegation.
3. The proposed change of residence was a draconian order. Although it might ultimately be justified, its seriousness and the agreed likelihood of substantial short-term distress might provide another compelling reason for permission. The court did not determine the merits of that point.
4. The appeal was expedited before a three-judge court. The grounds and skeleton arguments were to be supplemented. No interim contact direction was made. There was no order for costs apart from public-funding costs assessment.

• Court of Appeal (Civil Division): On an application for permission to appeal, permission was granted, the stay was continued, and directions were given for an expedited hearing: [2002] EWCA Civ 882.
• Worcester County Court: Miss Recorder Wilson ordered a change of residence for the two children after hearing the father’s residence application and the mother’s application to suspend contact. His Honour Judge Morris subsequently directed that implementation should be virtually immediate.