F (Children) , Re

An appellate court should refuse permission to challenge a residence or contact order where the decision is a proper exercise of discretion, supported by the trial judge’s assessment of the evidence and the children’s views, and has no reasonable prospect of being disturbed. An interlocutory order overtaken by later proceedings will generally provide no useful basis for appeal. A restriction under section 91(14) may warrant permission where its duration arguably exceeds proper discretion. Related applications may be managed together to avoid duplicated cost, stress and delay.

The proceedings concerned four children, arrangements for residence and contact, the former matrimonial home, and financial relief between the parents. Six applications for permission to appeal came before the Court of Appeal.

The applications challenged orders made by Judges Ryland, Walford and Compston concerning disclosure, residence, contact and a restriction under the Children Act 1989, section 91(14). They also concerned financial orders directing the sale of the former matrimonial home under a local-authority buy-back scheme. District Judge Black had made the original financial order on 10 June 2003, and Black J dismissed an appeal against it in February 2005. The central issues were whether permission should be granted and how the linked applications should proceed.

1. Disposition. The application concerning Judge Compston’s directions order was formally dismissed. Permission to appeal Judge Ryland’s disclosure order was refused because the order had been overtaken by the later hearing and the residence decision did not depend on the disputed documents.
2. Residence and contact. Judge Walford had been entitled to make a residence order in favour of the mother, refuse shared residence, and restrict contact to indirect contact. His decision was supported by his assessment of both parents, the evidence of the child psychiatrist and guardian, and the expressed views of the three older children. Direct contact risked undermining the children’s trust in the professionals. Separate contact between the youngest child and his father risked damaging the child’s relationship with his siblings and depriving him of an important support system. The children’s cultural identity could be preserved through indirect contact and existing social links. The orders were well within the judge’s discretion and there was no reasonable prospect of a successful substantive appeal.
3. Section 91(14) restriction. The two-year restriction on further applications under section 91(14) raised an arguable question whether the judge had exceeded the proper ambit of his discretion. Permission on that issue was therefore to be listed on notice to the mother and guardian, with any appeal to follow if permission were granted. Listing was deferred until the financial appeal had been resolved.
4. Financial proceedings and case management. The application concerning Black J’s order of 18 February 2005 was adjourned generally with liberty to restore. Any later application for permission arising from the appeal against Deputy District Judge Judd’s order was to be referred immediately to Lord Justice Wall for directions. The linked matters should, if possible, be heard together so that the Court of Appeal had the full range of options and duplicated cost and delay were avoided. The court did not determine whether the buy-back sale or the division of proceeds was correct, but observed that a sale at substantial undervalue for rehousing purposes was highly unusual and might raise an important point.
5. A transcript of Black J’s judgment and the present judgment was to be supplied to both parties at public expense.

• Court of Appeal (Civil Division): On 8 November 2005, the application concerning Judge Compston’s directions order was dismissed and permission concerning Judge Ryland’s disclosure order was refused. The permission application concerning the section 91(14) restriction was deferred, and the application concerning Black J’s order was adjourned generally with liberty to restore.
• High Court, Family Division: Judge Walford made residence, contact and section 91(14) orders on 24 November 2004. Black J dismissed the appeal from District Judge Black’s financial order in February 2005.
• District and Deputy District Judges: Judge Ryland made the disclosure order on 16 August 2004. Judge Compston made a directions order on 30 September 2004. District Judge Black made the original financial order on 10 June 2003. Deputy District Judge Judd later directed sale under the buy-back scheme and made associated financial and costs orders.