AJM v County Council

On an application concerning permission to seek contact, the court is not required to make a residence order of its own motion. A residence order which would discharge an existing care order requires careful consideration and evaluation of the available evidence. A person seeking to alter the existing arrangements must make a properly notified application supported by proper evidence. Permission to appeal requires an arguable appeal against the order under challenge; the appellate court’s remit does not extend to wider matters.

The appellant was the father of three children subject to care orders in favour of a local authority. One child, K, applied for permission to apply for a contact order, referring in correspondence to her wish for a residence order in favour of her father. McFarlane J dismissed that application on 30 January 2007. The father sought permission to appeal, arguing that the judge should have made a residence order of his own motion under section 10(1)(b) of the Children Act 1989, together with associated financial relief. The central issue was whether the proposed appeal had a reasonable prospect of success.

Lord Justice Wall refused permission to appeal.

1. Order under challenge. The only matter before McFarlane J on 30 January 2007 was K’s application for permission to apply for a contact order. The judge dealt with that application properly, and the father did not identify any sustainable criticism of that decision.
2. Residence order. The father argued that the judge had power under section 10(1)(b) of the Children Act 1989 to make a residence order of his own motion. It was unrealistic to suggest that the judge should have set aside the substantial history of the care proceedings and made such an order in the context of the application before him. A residence order would discharge an existing care order. That would require careful thought and a proper evaluation of all available evidence.
3. Proper procedure. A person seeking to alter the existing arrangements must apply to the judge on proper notice and with proper evidence. The father’s later ex parte application did not provide a basis for challenging the earlier order.
4. Permission threshold and disposition. The Court of Appeal’s remit was limited to deciding whether there was an arguable appeal against the order of 30 January 2007. The proposed appeal had no reasonable prospect of success. The application for permission to appeal was accordingly refused.

1. Court of Appeal (Civil Division) refused the father’s application for permission to appeal.
2. Family Division McFarlane J dismissed K’s application for permission to apply for a contact order on 30 January 2007.