F (A Child)

In family proceedings, the child’s welfare is the lodestar when deciding whether contact should continue. The question is whether contact can work for the child, rather than whether it serves a parent’s wishes or interests. On an application for permission to appeal, the Court of Appeal does not rehear the evidence. It asks whether there is an arguable error of law or a conclusion outside the range of permissible conclusions. Findings made at an earlier trial cannot be reopened merely because they are disputed; fresh evidence or equivalent justification is required. An order under the Children Act 1989, section 91(14), filters future county court applications but does not bar an application for permission to appeal. An order permitting a child’s surname to be changed is exceptional and must be necessary in the child’s interests.

Father sought permission to appeal against orders made by HHJ Cardinal on 30 November 2007 in a longstanding dispute concerning contact with his daughter. The orders prevented direct and indirect contact indefinitely and included injunctions, occupation orders, a restriction under section 91(14) of the Children Act 1989, and permission for the child’s surname to be changed.

Father challenged the judge’s reliance on earlier findings of domestic abuse, alleged unfair treatment as a litigant in person, and the factual and welfare conclusions supporting the orders. The central issue was whether there was an arguable error of law or a conclusion outside the range of permissible conclusions.

1. Permission and appellate function. The Court of Appeal refused permission. It does not hear family cases afresh. Permission is appropriate only if an arguable error of law or a conclusion outside the range of permissible conclusions is shown.
2. Section 91(14). An order under section 91(14) of the Children Act 1989 regulates future applications to the county court through a judicial filter. It cannot prevent a person from seeking permission to appeal in the Court of Appeal, which decides that application itself.
3. Earlier findings. The judge was entitled to rely on the findings made after the earlier trial. They had not been appealed and could not be reinvestigated in later proceedings merely because the father disputed them. There was no fresh evidence or comparable justification for reopening the factual issues.
4. Child’s welfare and contact. The severity of the orders for the father was not determinative. The relevant question was whether contact could work for the child. The continuing abusive and denying attitude of the father, his breaches of earlier orders, the child’s unusually strong opposition to contact, and consistent professional reports that contact would cause intolerable distress justified the judge’s conclusion that contact could not work. That conclusion was unassailable.
5. Other challenges. The decision was not shown to have been influenced by the father’s status as a litigant in person, particularly since both parents appeared in that capacity. An order enabling a change of surname is exceptional and must be necessary in the child’s interests; the judge was entitled to find that this threshold was met.

Order: Application refused.

• Court of Appeal (Civil Division) — In [2008] EWCA Civ 889, Lord Justice Hughes refused permission to appeal.
• Birmingham Civil Justice Centre — On 30 November 2007, HHJ Cardinal made orders preventing direct and indirect contact, granting related protective orders, imposing a section 91(14) restriction, and permitting a change of the child’s surname.