N-O (Children)

Where a first-instance court makes temporary orders concerning children under the Children Act and is due to review them shortly, an appeal may be premature. Permission should ordinarily be refused where the appeal cannot be heard before the review and would be overtaken by events. The appellate court also recognises the wide interim discretion of the first-instance judge and will not interfere unless the decision was plainly wrong. The applicant should present the case at the review and seek permission to appeal from the resulting order if disagreement remains.

Ms G, the mother of three children, sought permission to appeal against orders made by HHJ Barclay in the Bristol County Court on 20 December 2007. The orders included residence orders in favour of the fathers of two children, an interim care order concerning the third child in favour of the local authority, and interim supervision of the two older children. The care plan placed the youngest child with her maternal grandparents. All orders were temporary and due to be reviewed imminently. The central questions were whether the interim decisions were plainly wrong and whether permission should be granted before the scheduled review.

Lord Justice Wall, sitting alone, refused the applications. The court did not determine the substantive welfare issues or make final orders.

1. Interim discretion. A judge dealing with interim arrangements under the Children Act has a very wide discretion. Appellate intervention is difficult to justify unless the judge was plainly wrong. In this case, the judge’s approach was supported by both the children’s guardian and the local authority.
2. Prematurity. The orders were temporary and the judge was due to review the position shortly. Permission would not enable an appeal to be heard before that review. Any appeal would therefore be liable to be overtaken by events. The application was premature, even assuming that the proposed appeal could otherwise pass the permission threshold.
3. Practical course. Ms G should attend the review and present her case to the judge. If she remained dissatisfied with the order then made, she could seek permission to appeal against that later order.
4. Order. The applications were refused on both grounds. A transcript of the judgment was directed to be prepared and sent to Ms G at public expense.

1. Court of Appeal (Civil Division): On 12 February 2008, refused the applications for permission to appeal. The proposed appeals were premature and there was no sufficient basis to conclude that the interim exercise of discretion was plainly wrong. See [2008] EWCA Civ 135.
2. Bristol County Court: On 20 December 2007, HHJ Barclay made temporary residence, interim care and interim supervision orders concerning the children.