Kimber v Kimber

An appellate court should not determine important issues which the lower court was neither asked nor required to decide. A party cannot convert a narrowly presented application into a wider appeal by relying on arguments which were not drawn to the lower court’s attention. Where the lower court adjourned the limited issue before it to obtain further evidence, there is no appealable error in respect of an issue it never determined. The proper course is to raise the wider arguments at first instance, particularly where related committal proceedings remain pending. A family court has power, in appropriate circumstances, to restrain a party from leaving the jurisdiction, but the wider scope of that power, including in relation to European Union free movement, was left undecided.

The husband sought permission to appeal from an order made by Coleridge J on 8 November 2005 in family proceedings arising from an ancillary-relief order. He had undertaken not to leave England and Wales and not to apply for a fresh passport. His application for release was treated at hearings before Coleridge J as concerning a proposed short trip to Liechtenstein and Switzerland, subject to evidence, security and disclosure.

The order adjourned the matter but also stated that the husband’s application was refused. Before the Court of Appeal, he sought to raise wider arguments that the court had no continuing jurisdiction to restrain his departure and that his European Union free-movement rights were engaged. The central issue was whether those arguments could be considered when they had not been argued or determined below.

Application refused. Wilson LJ gave the principal judgment. Hallett LJ and Brooke LJ agreed.

1. The proposed appeal raised important arguments concerning the continuing jurisdiction to restrain the husband’s departure from England and Wales and the relevance of European Union free movement. Those arguments had not been presented to, or decided by, Coleridge J. The Court of Appeal could not determine whether the judge was wrong on an issue which he had never been invited to decide.
2. At both relevant hearings the husband had allowed the application to be treated as one for permission to make a short trip abroad and return. On 22 September 2005 the judge adjourned that limited issue so that the husband could file evidence about the proposed trip, security and related matters. On 8 November the judge required further disclosure and an affidavit, although the composite order described the application as refused. In substance, the judge was continuing to deal with the limited issue. The husband could not recast that procedural history as a determination of his wider challenge. Any appeal against the judge’s approach to the short trip would in any event depend on arguments never made below.
3. The proper course was to place the wider arguments before Coleridge J, particularly at the wife’s pending committal application. Unless that resulted in immediate committal, the judge could determine the wider challenge promptly. The undertaking could remain in force pending that first-instance hearing. Hallett LJ emphasised the need for the wider issue to be resolved without further delay.
4. Wilson LJ noted that paragraph 4.6 of the Practice Direction supplementing Part 52 of the Civil Procedure Rules 1998 required an application for permission to appeal to be made orally at the hearing, a requirement also stressed in Re T (Contact: Alienation: Permission to Appeal) [2003] 1 FLR 53. The husband was given the benefit of the doubt on that procedural failure, which did not alter the result.
5. Brooke LJ stated that family courts have power in certain circumstances to restrain a party from leaving the jurisdiction, referring to B v B (Injunction: Restraint on Leaving Jurisdiction) [1997] 2 FLR 148. The scope of that jurisdiction, particularly where a European Union citizen seeks to move within the Union, remained for determination on an appropriate occasion.

The formal order was that the application was refused.

1. Court of Appeal (Civil Division): Refused the husband’s application for permission to appeal. The proposed wider arguments had not been argued or determined in the court below.
2. High Court, Family Division: Coleridge J made the order dated 8 November 2005, which adjourned the matter, required disclosure and evidence concerning a proposed short trip, and stated that the husband’s application for release from his undertakings was refused.