W (Children)

In an appeal concerning discretionary child-welfare orders, permission should be granted only where there is an arguable case that the judge was plainly wrong. The appellate court does not rehear earlier unchallenged decisions or reconsider welfare findings without a proper basis.

A private hearing in proceedings concerning children does not itself breach article 6. A procedural-unfairness complaint requires a real disadvantage. An interim contact order permitting arrangements by agreement may operate only as a bridge to further determination by the first-instance court. Fresh evidence on appeal must satisfy each of the Ladd v Marshall conditions. Supervised contact may properly protect children while preserving a beneficial relationship where a parent cannot safely contain hostility towards the other parent.

The father sought permission to appeal, and to adduce fresh evidence, against an order of McFarlane J in private-law proceedings concerning two children. The judge had dismissed the father’s and paternal grandparents’ applications for residence, shared residence and prohibited steps orders. He ordered fortnightly supervised contact, restricted further section 8 applications without leave for two years, and directed that the mother’s address remain confidential.

The father alleged that the hearing was unfair under article 6 because he lacked the court bundles. He also argued that an earlier Court of Appeal contact order remained binding, alleged injustice and maternal dishonesty, and relied on family statements as fresh evidence. The lower judgment was [2007] EWHC 649 (Fam). The central question was whether any ground gave an arguable basis for saying that McFarlane J’s discretionary welfare order was plainly wrong.

1. The applications were refused. There was no arguable basis for an appeal against McFarlane J’s order, and the proposed fresh evidence was inadmissible.

2. The court’s role on a permission application was confined to deciding whether the judge had arguably erred in law, lacked sufficient material for factual findings or assessments, made an order outside the discretionary range, or otherwise exercised discretion so as to be plainly wrong. Applying G v G, [1985] 1 WLR 647, disagreement with a welfare decision was insufficient.

3. There was no article 6 breach. Private hearings in proceedings under the Children Act 1989 were compatible with article 6. The guardian’s solicitors had supplied clear indices, a case summary and an offer of a paginated bundle. The father therefore knew the case to meet and suffered no procedural disadvantage. A litigant who leaves court could not establish unfairness merely because judgment was delivered in his absence.

4. The earlier Court of Appeal order of September 2005 was a temporary, permissive arrangement pending a substantive first-instance hearing. It did not confer an enduring right to contact on terms chosen by the father or prevent later variation. McFarlane J was entitled to proceed from the earlier findings, assess subsequent events and determine the children’s current welfare.

5. The evidence supported supervised contact. The children enjoyed their father’s company and the mother remained willing to facilitate contact, but the father’s hostility towards her and inability to accept assistance created a justified concern that, without supervision, the children would be exposed to that hostility. The court also rejected the allegation of parental alienation. The finite section 91(14) restriction was not shown to be arguably wrong.

6. The proposed family statements failed the first condition in Ladd v Marshall, [1954] 1 WLR 1489, because they could reasonably have been obtained for the hearing below. They would not have altered the result and could instead be raised at a future review. The unsanctioned post-hearing psychological report had no forensic value.

• Court of Appeal (Civil Division) — refused the father’s application for permission to appeal and his application to adduce fresh evidence: [2007] EWCA Civ 786.
• High Court, Family Division (McFarlane J) — dismissed the residence, shared-residence and prohibited-steps applications; ordered fortnightly supervised contact; imposed a two-year leave requirement under section 91(14); and preserved the confidentiality of the mother’s address: [2007] EWHC 649 (Fam).
• Court of Appeal — in September 2005 set aside an earlier order dismissing contact and imposing an indefinite section 91(14) restriction, and made a temporary contact arrangement pending renewed first-instance determination.