A (A Child), Re

In child proceedings, the judge has a broad discretion over how applications are determined, including dismissal at an early stage without full inquiry or oral evidence. That discretion may be exercised to refuse to reopen detailed arrangements agreed by parents where they have generally worked, there is no significant change, further litigation risks emotional harm, and the application has no real prospect of success. A judge may rely on an informed guardian’s recommendation and should depart from it only for good reason. Technical arguments about whether a consensual application was dismissed or permitted to be withdrawn have no practical substance. Where only some permission grounds are totally without merit, the whole application should not be so classified.

The father, acting without legal representation, sought permission to appeal from Munby J’s dismissal on 5 August 2009 of 18 applications concerning arrangements for N, an eight-year-old child. The applications challenged a detailed consent order governing N’s time with each parent and sought, among other things, sole residence for the father and further assessments concerning the mother’s proposed move to independent accommodation.

The High Court relied on the guardian’s recommendation, the generally successful operation of the consent order, the absence of significant change, and the harm likely to result from continued litigation. The central issue was whether any proposed ground was arguable and whether the permission application could be characterised as totally without merit.

Application refused. The proposed appeal had no real prospect of success. Grounds 1 to 13 were totally without merit, but the application as a whole was not so classified because the residence-related grounds arose against a background of earlier professional concerns about the mother’s proposed move.

1. The challenge to the description of the father’s application as dismissed rather than withdrawn was unarguable. In a child case, consensual dismissal otherwise than on the merits has no practical difference from withdrawal. An application cannot be ordered to be withdrawn; it can only be permitted to be withdrawn. The technical challenge was sterile and an abuse of process.
2. The application seeking a declaration as to the legal status of the consent order was unnecessary and mischievous. The parties had deliberately used language referring to the time N should spend with each parent, avoiding disputes about residence and contact. The associated argument concerning testamentary guardianship and Children Act 1989, s 5(7), provided no legitimate basis for reopening the matter.
3. As to the detailed applications to vary or supplement the consent order, Munby J was entitled to decline further adjudication. The arrangements had been agreed after lengthy negotiation, had generally worked, and further litigation was likely to damage N. It was appropriate to bring the litigation to an end.
4. The judge also acted within his discretion in dismissing the sole residence application without further inquiry. The approach reflected in Re B (Minors) (Contact) [1994] 2 FLR 1, at 5, recognised the width of the discretion in determining children applications, including early determination without full inquiry or oral evidence. Munby J was entitled to rely on the guardian’s informed recommendation following inquiries and interviews with N, and would have needed good reason to depart from it. There had been no significant change sufficient to justify reopening the arrangements, and the father’s persistent litigation was relevant to N’s welfare.
5. Rule 52.10(5) of the Rules of 1998 required consideration of a civil restraint order where an application for permission was totally without merit. Since only part of this application met that description, the court declined to record the application as a whole as totally without merit. The father was warned that an extended civil restraint order might be considered under paragraph 3 of Practice Direction C appended to Part 3 of the Rules if a further application failed.

• Court of Appeal (Civil Division): On 10 November 2009, Wilson LJ refused the father’s application for permission to appeal.
• High Court, Family Division: Munby J’s judgment dated 17 July 2009 led to an order dated 5 August 2009 dismissing the father’s applications and refusing permission to appeal.