K (Children), Re

In a family case involving an order ending direct contact between a parent and children, the seriousness of the outcome and the circumstances leading to estrangement may justify referring a permission application from a single Lord Justice to a larger Court of Appeal constitution. The applicant must still show an arguable case and reasonable grounds for disturbing the order. A direction for the application to be heard by a full court does not decide that permission should be granted or that the lower court was wrong. Where indirect contact by writing remains available, using that opportunity does not prejudice the permission application or any subsequent appeal.

Mr AK sought permission to appeal against an order made by Bracewell J on 13 May 2005 in the High Court of Justice, Family Division. The order directed that there be no direct contact between him and his daughters, L and S, while allowing indirect contact by writing. The case had a long history of court involvement, and the children had become alienated from their father. Lord Justice Wall, sitting alone, considered that the gravity of the outcome and the circumstances of the alienation justified consideration by a larger Court of Appeal constitution, although he expressed no concluded view on the merits and warned of the costs consequences. The central issue was whether permission should be considered by a larger constitution and, if granted, whether the appeal should follow immediately.

1. Application adjourned. Lord Justice Wall directed that the application for permission to appeal be adjourned and relisted on notice to Miss J and CAFCASS, with the appeal to follow if permission were granted.
2. The lower order involved grave consequences for both the children and their father. Although appellate interference with the discretion of an experienced judge who knew the case well would be difficult, the circumstances in which the children had become alienated and the seriousness of the no-contact order justified consideration by a larger court. That court could assess whether there was an arguable case and reasonable grounds for disturbing the order, and could analyse what had gone wrong over the years.
3. The matter was to be listed, if possible, before three judges. If that would cause undue delay, it could be heard by two judges. At least one member of the constitution was to have family experience. Inclusion of Lord Justice Wall was considered sensible because he had read the papers.
4. The direction did not indicate that permission would be granted or that the appeal would succeed. In the meantime, the father could write to the children under the existing order. Lord Justice Wall stated that doing so would not prejudice the permission application or any subsequent appeal. The transcript was to be prepared at public expense and served on all parties.

• High Court of Justice, Family Division: Bracewell J made an order on 13 May 2005 directing that there be no direct contact between Mr K and his daughters, L and S, while permitting indirect contact by writing.
• Court of Appeal (Civil Division): in [2005] EWCA Civ 1094, Lord Justice Wall adjourned the application for permission to appeal for consideration by a larger constitution.