E (children), Re

An applicant substantially out of time to seek permission to appeal must show quite exceptional reasons for an extension. Prolonged delay, coupled with failure to apply promptly for an extension, may be insufficiently explained by unsuccessful attempts to obtain public funding. Permission to appeal requires a real prospect of success. In family proceedings, an alleged victim of abuse should not, in the circumstances, be expected to give oral evidence and be cross-examined by or for the alleged abuser. A refusal under section 91(14) of the Children Act 1989 will stand where the discretion was properly exercised.

The father sought permission to appeal three orders made by HHJ de Mille in the Peterborough County Court. The first two orders were made in 2003 and 2004 and the applications were substantially out of time. The third order, made on 30 September 2005, refused leave under section 91(14) of the Children Act 1989 to apply for contact with the children. The central issues were whether time should be extended, whether the earlier hearing had been unfair because an alleged victim was not cross-examined, and whether the refusal of further contact applications was justified.

Applications refused. The Court of Appeal refused both the applications for an extension of time and for permission to appeal.

1. The applications concerning the first two orders were hopelessly out of time. Although the father had spent time trying to obtain public funding and had taken other steps, he had not made an early application for an extension. A delay of this length required quite exceptional reasons. The court was not persuaded, even on a prima facie basis, that the proposed grounds disclosed such a case.
2. The challenge to the fairness of the first hearing failed. The judge had been entitled to make clear and unequivocal findings on the evidence and had considered the wider family circumstances. In the circumstances, it was not appropriate to expect the alleged victim of abuse to give oral evidence and be cross-examined by or on behalf of the alleged abuser in family proceedings. The hearing was fair.
3. The order refusing leave under section 91(14) of the Children Act 1989 involved the exercise of judicial discretion. HHJ de Mille had been fully apprised of the circumstances and was justified in concluding that the father had shown neither an arguable case nor a need for a fresh judicial investigation. His failure to recognise the harm caused, to accept appropriate boundaries, and to provide a basis for safe contact supported the refusal.
4. Permission to appeal could be granted only where the proposed appeal had a real prospect of success. This case had no realistic prospect of success. The formal order was that the application for permission to appeal and the application for an extension of time were refused.

• Court of Appeal (Civil Division) — on 20 December 2005, refused permission to appeal and refused extensions of time.
• Peterborough County Court — HHJ de Mille made orders on 3 October 2003, 10 March 2004 and 30 September 2005, including restrictions under section 91(14) of the Children Act 1989 and refusal of leave to apply for contact.