N-S (Children), Re

A family court may maintain restrictions on a party’s possession of documents where the decision is fact- and case-dependent and based on an identified risk. A challenge to that discretion requires the first-instance reasons, particularly where the judge offered to give a full reasoned judgment. Counsel who failed to request those reasons should return to the judge before seeking permission to appeal. A broad assertion that later procedural rules permit documents to be shared does not establish an error: the Family Proceedings Amendment No. 4 Rules 2005 made only a limited extension, with specific cases governed by rule 6(3).

The mother sought permission to appeal an order made by Her Honour Judge Steel in the Liverpool County Court on 22 November 2005. The order maintained a consent restriction under which the mother’s solicitors could discuss and share the contents of documents with her, but could not give her copies to take away.

The application followed the commencement of the Family Proceedings Amendment No. 4 Rules 2005. The mother argued that the amended rules permitted wider communication of documents and that the judge had imposed a blanket restriction or reversed the burden of proof. The central issues were whether the judge had erred in law or in the exercise of her discretion, and whether the absence of a full reasoned judgment prevented an effective challenge.

The Court of Appeal, in the judgment of Lord Justice Thorpe with which Lady Justice Smith agreed, refused the application for permission to appeal.

1. The judge’s order was fact- and case-dependent. She had identified a risk in permitting the mother to possess the documents and had left open the possibility of reconsidering the restriction if concrete evidence showed a material change in the mother’s position. The contention that the order amounted to a blanket restriction or reversed the burden of proof did not, in itself, criticise the exercise of discretion.
2. Where a discretionary decision is challenged, counsel should obtain the full reasons offered by the first-instance judge. If reasons were not requested because an appeal was not then contemplated, the applicant should return to that judge once permission to appeal is being considered and explain why a reasoned judgment is required. The failure to do so was fatal to this application.
3. The court considered the judge’s brief reasons impeccable and found no arguable error of law. It observed that the Family Proceedings Amendment No. 4 Rules 2005 had received only limited attention in the mother’s written argument. The court nevertheless stated that the amendment provided a limited extension to the existing regime under rule 23.1 of the Family Proceedings Rules 1991, and that specific cases were confined to those covered by rule 6(3).
4. The application was characterised as hopeless when fully investigated. Permission to appeal was refused.

• Court of Appeal (Civil Division) — [2006] EWCA Civ 500; application for permission to appeal refused.
• Liverpool County Court — Her Honour Judge Steel maintained the restriction contained in paragraph 1 of the consent order dated 5 September 2005 by an order made on 22 November 2005.