C (Children), Re

Permission to appeal is granted only where the proposed appeal has a real prospect of success or another compelling reason requires it to be heard. The appellate court does not decide what order it would have made or substitute its own discretion. Where an interim contact decision is discretionary and falls within the range of decisions open to the first-instance judge, permission should be refused absent an identifiable error with a real prospect of success. The court may consider the evidential basis for the order, including clarified expert evidence, but the permission stage is not a re-hearing of the welfare or contact arrangements.

The father sought permission to appeal against two Leicester County Court orders concerning interim contact between his two children and their mother. HHJ Lea’s order of 24 March 2010 provided for supported, but partly unsupervised, contact and telephone contact. HHJ Hampton’s order of 3 September 2010 continued that arrangement and declined to alter the children’s separate representation.

The father argued that the arrangements exposed the children to risk, that contact should be supervised, that telephone contact should be monitored, and that the children’s representation was inadequate. The central issue was whether either proposed appeal had a real prospect of success or another compelling reason for it to be heard.

The applications for permission to appeal were refused.

1. Lady Justice Black explained that the permission test required a real prospect of success or some other compelling reason why the appeal had to be heard. The appellate court was not to ask what order it would have made at first instance and then substitute its own decision. Permission to appeal a discretionary decision of this type was difficult to obtain.
2. The court considered HHJ Lea’s reasons together with his later judgment, which amplified the original reasoning. The judge had considered the guardian’s position, the clinical psychologist’s evidence and the children’s ages. He was entitled to conclude that constant supervision was unnecessary while supported contact remained appropriate.
3. The psychologist’s evidence, when clarified, did not recommend continuous supervision. It supported an arrangement involving checks at the beginning and end of contact, support during the contact and the ability for problems to be brought promptly to the attention of those involved. That evidence provided a proper basis for the interim arrangements.
4. HHJ Hampton was entitled to conclude that the existing support was working, that the periods of contact were appropriate, and that the children’s separate representation should continue. Her decision was within the band of decisions open to her. There was therefore no real prospect of successfully challenging it on appeal.
5. The psychological assessment was not itself the subject of the applications, and the Court of Appeal declined to halt it. The applications for permission to appeal were refused.

1. Court of Appeal (Civil Division): On 21 October 2010, the applications for permission to appeal were refused: [2010] EWCA Civ 1424.
2. Leicester County Court: HHJ Lea made an interim contact order on 24 March 2010. HHJ Hampton made a further interim order on 3 September 2010. Both orders concerned contact pending a final hearing.