K (Children)

In an application for permission to seek a contact order, procedural fairness is assessed in the round. A judge may determine an application on the papers where oral evidence is unnecessary and the applicant is properly represented. If the applicant later attends, fairness requires genuine consideration of further instructions and submissions, but not necessarily a reopened hearing or oral evidence. The court must balance the applicant’s rights with those of the other parties and the children. The procedure was fair because counsel was given an opportunity to take instructions and make further submissions, which the judge considered with an open mind.

Mr M applied from prison for permission to apply for contact with his three half-sisters under the Children Act 1989. The application was opposed by their mother, Mrs K, and had been transferred from the family proceedings court to Chelmsford County Court. Mr M was not produced for the hearing at the expected time, although he was represented by counsel. The judge heard submissions, refused permission, and later allowed counsel to take instructions and make further submissions when Mr M arrived.

Mr M appealed, arguing that proceeding in his absence and refusing to hear him personally breached article 6 and natural justice. The central issue was whether the procedure, considered as a whole, was unfair.

1. Application refused. The Court of Appeal upheld the refusal of permission to apply for a contact order.
2. Applications of this nature would normally be dealt with on the papers. Oral evidence is exceptional and need not be heard where it would not address a critical issue or add materially to the evidence available through statements and legal representation.
3. A judge may proceed with an application in the applicant’s absence where the applicant is properly represented, the case is suitable for determination on the papers, and the information reasonably available indicates that the applicant will not arrive in time.
4. Procedural fairness under article 6 and natural justice had to be assessed in the round. The court had to consider the entire process, including the position of the children and Mrs K and the financial and emotional consequences of a further adjournment.
5. When Mr M arrived, the judge allowed counsel to take instructions and make further submissions. No application for oral evidence was made. The judge recorded and considered the additional factual points and was entitled to conclude that they did not alter the result. He had not closed his mind: had the submissions justified a different conclusion, he would have changed it.
6. The judge’s merits analysis referred to section 10(9) of the Children Act 1989, including the nature of the proposed application, the applicant’s connection with the children, and the risk of disruption and harm to their welfare. The Court of Appeal noted that the merits were not challenged on the appeal.

• Court of Appeal (Civil Division): On appeal from Chelmsford County Court, the application for permission to appeal was refused. Lords Justice Wall and Thorpe agreed.
• Chelmsford County Court: HHJ Newton refused Mr M permission to apply for a contact order on 12 April 2006.