O v O

Permission to appeal is unavailable against a refusal of permission to appeal. A second appeal also requires an important point of practice or principle, or another compelling reason. An appeal will not be entertained where the order has expired or the issue has become academic. Where a party was absent when an order was made, the proper course may be an application to the court that made the order to set it aside. The Court of Appeal will not substitute its view for a trial judge’s findings of fact where there is supporting evidence and no error of principle. Restrictions affecting family life must be necessary and proportionate, having regard to the competing human rights involved.

The applicant made five applications arising from orders of the County Court and Family Division concerning occupation of the matrimonial home, injunctions against violence and molestation, the residence of two children, a proposed holiday in Nigeria, and a later time-limited injunction. The applications challenged orders made by HHJ Hornby, HHJ Roberts and HHJ Bradbury, including a refusal of permission to appeal. The central issues were whether the Court of Appeal had jurisdiction, whether the proposed appeals disclosed an arguable error or satisfied the second-appeal threshold, and whether any issues had become academic.

1. First application. The appeal against the order requiring the applicant to leave the matrimonial home and granting injunctions was dismissed. The judge had been entitled to reject the applicant’s account and to rely on medical and police evidence supporting findings of violence. The judge had correctly applied section 33 of the relevant Act, weighing the circumstances, the parties’ accommodation and financial needs, and the children’s need to live with their mother.
2. Second application. The Court of Appeal had no jurisdiction to entertain an appeal against a refusal of permission to appeal. Section 54(4) of the Access to Justice Act 1999 prevented such an appeal. In any event, the proposed matter was a second appeal and disclosed neither an important point of practice or principle nor another compelling reason. The factual findings and the conclusion that the incident amounted to an assault disclosed no error of principle.
3. Third application. A challenge to an order made in the applicant’s absence had to be pursued in the County Court by an application to set the order aside, under what the judge understood to be CPR 39.3. The appeal route to the Court of Appeal was therefore inappropriate, and no error in the residence decision had been shown.
4. Fourth and fifth applications. The proposed appeal concerning the children’s holiday was academic because the children had already travelled to Nigeria and returned. The challenge to the later injunction was likewise academic because it had expired. Any outstanding issue concerning the District Judge’s order had to be dealt with in the County Court.
5. All five applications were dismissed. The court concluded that the measures taken were necessary and proportionate, having regard to the conflicting human rights of the parties.

• Court of Appeal (Civil Division): applications arising from County Court orders made by HHJ Hornby, HHJ Roberts and HHJ Bradbury were dismissed. The Court of Appeal held that one proposed appeal was jurisdictionally barred, one should be pursued by an application to set aside in the County Court, and two were academic.