K (Children), Re

On an appeal from a discretionary family decision, a circuit judge must identify and correct an order that is plainly wrong. Welfare considerations cannot justify affirming an order which the judge considers wrong while simultaneously setting it aside. Family proceedings allow broad procedural discretion, but the hearing must remain fair and comply with ECHR Article 6. A contact application should not be dismissed in limine without oral evidence where the decision effectively deprives children of the opportunity of a relationship with a parent. An order under section 91(14) of the Children Act 1989 must also be necessary and properly justified.

The mother appealed, with permission, against a circuit judge’s decision in private law proceedings concerning two children aged seven and three. The circuit judge had heard the father’s appeal against a district judge’s dismissal of his application for contact and a one-year restriction on further applications under section 91(14) of the Children Act 1989.

The circuit judge accepted that the district judge’s order was properly reached and unappealable, but set it aside to allow a fact-finding hearing, relying on the children’s welfare. The central issue was whether welfare could justify allowing the appeal when, on ordinary appellate principles, the discretionary decision should have been dismissed.

1. Appeal dismissed. The circuit judge’s reasoning contained an inherent contradiction. Having set aside the district judge’s orders, he must have considered them wrong. If so, his duty on the appeal was to say so.
2. The district judge’s orders were plainly wrong. She dismissed the father’s contact application without hearing oral evidence and thereby deprived the children of a final opportunity to develop a relationship with their father. The decision was contrary to authority and represented a breach of the father’s ECHR Article 6 rights.
3. A circuit judge may dismiss an appeal against a discretionary decision where the decision falls within the established ambit of reasonable disagreement and is not plainly wrong. That principle did not apply because the circuit judge plainly considered the orders plainly wrong. The welfare dilemma identified in the permission decision therefore did not arise.
4. Family courts possess a broad discretion over the conduct of proceedings: see Re B (minors) (application for contact) [1994] 2 FLR 1. That discretion is constrained by fairness and ECHR Article 6 compliance.
5. A formal application under section 91(14) of the Children Act 1989 is not strictly necessary before an order under that subsection is made: Re C (a child) [2009] EWCA Civ 674. Nevertheless, the subsection was not material to the outcome because the dismissal of the contact application in limine was plainly wrong. The appeal was dismissed for the reasons advanced in the respondent’s notice.

• Court of Appeal (Civil Division) — The appeal from His Honour Judge Hamilton’s decision was dismissed. The court held that the circuit judge should have stated that the district judge’s orders were plainly wrong.
• Slough County Court — On 12 August 2010, His Honour Judge Hamilton allowed the father’s appeal against the district judge’s order, set aside the dismissal of the contact application and the section 91(14) restriction, and directed a fact-finding hearing.
• District Judge — On 13 May 2010, the father’s contact application was dismissed and a one-year restriction on further applications was imposed under section 91(14) of the Children Act 1989.