M (Children)

Where an urgent permission application concerns arrangements for children and a material change has occurred since the lower court’s order, the Court of Appeal may adjourn the application for a prompt hearing by two judges on notice to the affected parties. This is appropriate where a respondent’s current position is unclear and the court needs a reasoned account from that respondent before finally disposing of the proposed appeal. The court may also take account of a guardian’s reconsidered position following the change in circumstances.

The father applied in person for permission to appeal against an order made by His Honour Judge Walker at Wandsworth County Court on 30 October 2006 in proceedings under the Children Act 1989 concerning arrangements for his two daughters. The order permitted a proposed South African holiday to end on 25 February 2007 but required it to begin on 14 February, because of the schooling the children would miss.

After the order, one child was injured in a road accident and was expected to remain absent from school until 2 March. The guardian consequently reconsidered and no longer opposed the earlier start date. The mother remained strongly opposed, but her reasoned position had not been presented to the court. The central procedural issue was whether the permission application should be adjourned to enable an urgent, properly notified hearing and possible disposal of the substantive appeal.

1. Adjournment. The application for permission to appeal was adjourned for hearing by two Lords Justices on 5 February 2007, on notice to the mother and the children, who were represented through their guardian ad litem.
2. The application appeared initially to concern a minor issue within the broad discretion applicable to arrangements for children. The lower court had accepted the mother’s and guardian’s opposition to the longer holiday, principally because of the resulting loss of schooling.
3. The subsequent accident materially altered the position. The injured child would lose no schooling through the proposed holiday because she was already medically unfit to attend school, and the guardian had reconsidered her opposition. That change made it necessary to reassess the issue rather than simply defer to the lower court’s exercise of discretion.
4. The mother nevertheless remained strongly opposed to the proposed holiday. Since the father could not explain her current position and she was not represented at the hearing, fairness and effective appellate decision-making required that she be given notice and an opportunity to present her reasoned views.
5. The adjournment served two linked purposes: obtaining the mother’s considered position and securing final disposal of the proposed appeal urgently. The guardian could decide whether attendance was necessary in light of her solicitor’s letter and the need to avoid unnecessary costs or resources.

• Court of Appeal (Civil Division): The application for permission to appeal from the Wandsworth County Court was adjourned for an urgent hearing by two Lords Justices on 5 February 2007, on notice to the mother and the children.
• Wandsworth County Court: His Honour Judge Walker made an order on 30 October 2006 permitting the holiday to end on 25 February 2007 but requiring it to begin on 14 February.