D (A Child)

Permission to appeal in child-arrangements proceedings depends on whether there is a reasonable case that the decision is sufficiently arguably flawed to justify an oral appeal with a reasonable prospect of success. The court must balance that prospect against delay, the discretionary nature of the order, the absence of the underlying fact-finding judgment, and the appellate court’s limited role in reviewing factual findings and assessments of witnesses. Where those factors make an appeal futile, the proper course is a fresh application to the court of first instance. A dissatisfied party may then renew an application for permission to appeal.

The father sought permission to appeal two Gloucester County Court orders concerning his daughter. The first, made on 24 April 2008, refused a stay of an earlier order. The second, made on 26 September 2007, had set aside shared-residence arrangements and restricted the father’s contact.

The father had attempted to appeal the September 2007 order in time, but administrative difficulties prevented the appeal from being mounted. The Court of Appeal therefore directed that both permission applications be heard together, including the application to appeal out of time. The central question was whether there remained a reasonable prospect of success in challenging the discretionary order based on earlier fact-finding.

Both applications for permission to appeal were refused.

1. The application concerning the refusal of a stay was hopeless. The recorder had been required to refuse the stay and had no proper alternative.
2. On permission to appeal, the court’s task was limited to asking whether there was a reasonable case that the September 2007 judgment was so arguably flawed that an oral appeal would have a reasonable prospect of success. The court was not conducting a rehearing of the evidence.
3. The relevant factors strongly opposed permission. The challenged order was more than a year old, which was significant in the life of a young child. It was made in the exercise of a judicial discretion. The underlying fact-finding judgment was unavailable, although the later order was based upon it. The Court of Appeal was therefore unable, or at least very reluctant, to interfere with the factual findings or the recorder’s assessment of the parties’ evidence and credibility.
4. The father’s allegations of serious errors could not properly be resolved on the material before the court. Even if an appeal were heard, the appropriate course would be to return to the county court for a fresh order rather than seek to revive the outdated order by appellate proceedings.
5. The father remained entitled to apply to the county court for changed contact or shared-care arrangements, and to seek a different tribunal. If dissatisfied with the resulting decision, he could renew his application for permission to appeal.

• Court of Appeal (Civil Division) — Applications for permission to appeal the Gloucester County Court orders of 24 April 2008 and 26 September 2007, including permission to appeal out of time, refused: [2008] EWCA Civ 1098.
• Gloucester County Court — Ms Recorder Searle refused a stay on 24 April 2008. Mr Recorder Weintraub made the substantive child-arrangements order on 26 September 2007.