D (A Child), Re

Permission to appeal requires a real prospect of success or another compelling reason. The Court of Appeal is a court of review. It does not rehear evidence or substitute its view for a first-instance judge’s assessment of credibility or discretion, unless there was an error of law or the decision was plainly wrong. In child contact cases, the first-instance court has a wide discretion, guided by the child’s best interests. An alleged breach of Article 6 requires an arguable case of unfairness; adequate representation, opportunity to present evidence and appropriate interpretation may defeat that argument.

Flavio Marchese sought permission to appeal orders made by Her Honour Judge Laura Harris in the Chelmsford County Court on 27 April 2009 concerning contact with his daughter. The judge had made adverse findings about his conduct towards the mother and concluded that contact could not progress without further assessment and a sustained period without harassment. The applicant alleged inadequate hearing time, language-related unfairness, failure to consider evidence, and discrimination based on gender and nationality. The central issue was whether those complaints disclosed a real prospect of success or another compelling reason for an appeal.

Application refused.

1. Under rule 52.3(6) of the Civil Procedure Rules 1998, permission could be granted only if the proposed appeal had a real prospect of success or there was some other compelling reason for it to be heard.
2. The Court of Appeal is a court of review. It asks whether the judge made an error of law or exercised her discretion outside the ambit of reasonable disagreement, namely whether she was plainly wrong. It does not rehear oral evidence or substitute the appellate judge’s view for that of the trial judge.
3. The three-day fact-finding hearing was sufficient. Credibility was for Judge Harris, who was entitled to accept the mother’s evidence and reject the applicant’s evidence. In proceedings concerning children, first-instance judges enjoy a very wide discretion, making such decisions difficult to challenge on appeal.
4. The applicant’s Article 6 complaint disclosed no arguable unfairness. There was no evidence that the judge had pressured him to give evidence in English. He was represented, had submitted witness statements and other material, gave at least some evidence through an interpreter, and had the opportunity to present his case. The fact that the evidence did not produce the outcome he wanted did not show that it had been disregarded.
5. The court also rejected the allegations of discrimination and bias. The judge had recognised the importance of the child’s Italian heritage and the potential value of the applicant’s relationship with her. The decision instead rested on factual findings, the child’s best interests and the practical difficulties created by the applicant’s conduct.
6. There was no real prospect of success and no compelling reason for an appeal. Permission was therefore refused.

• Court of Appeal (Civil Division): On 24 July 2009, Lord Justice Wall refused permission to appeal.
• Chelmsford County Court: Her Honour Judge Harris made orders on 27 April 2009 concerning contact, assessment and restraints on the applicant’s conduct.