RW v SW

Where an unusual permission application concerning child contact raises substantial fairness concerns, a single Lord Justice may consider that it should be determined by a full court. The court may be constituted by two Lord Justices or by a Lord Justice and a High Court Judge with appropriate family experience. The respondent may be spared service at the permission stage where refusal would end the matter for the duration of an existing restriction under the Children Act 1989, while an arguable appeal would lead to an inter partes hearing.

The father applied for permission to appeal against orders regulating his contact with his ten-year-old son. The orders provided for indirect contact twice weekly, direct contact four times a year for two hours in the mother’s presence, and a restriction under section 91(14) of the Children Act 1989 on further section 8 applications without leave.

The orders had been made by HHJ Horwitz QC in the Principal Registry of the Family Division on 18 December 2009. The father challenged the contact arrangements, the restriction on further applications, the procedure adopted by the judge, and the continued involvement of the NYAS guardian. The central issue was whether the application should be decided by a single Lord Justice or referred to a full court.

1. Permission application. Lord Justice Wall decided, after considering the written and oral material, that the application should not be determined by a single Lord Justice. The father’s concerns, the unusual facts, and the importance of the child-contact issue justified consideration by a full court.
2. Constitution of the court. The application was to be adjourned to a full court which could consist of two Lord Justices, at least one having family experience. Alternatively, one member could be a High Court Judge, and a Family Division judge would provide the necessary experience.
3. Section 91(14) order. The judge recorded that the father’s procedural challenge to the order under section 91(14) of the Children Act 1989 appeared to have little force, because the NYAS guardian’s report had identified the need for such an order. The point was not finally determined.
4. Notice. The father’s permission application was directed to be heard without notice to the mother. If permission were refused, the mother would not face further proceedings during the life of the section 91(14) order. If the full court found an arguable appeal, the matter would be listed inter partes.
5. The application was adjourned. No final decision was made on permission to appeal or on the merits of the underlying contact orders.

• Court of Appeal (Civil Division): The application for permission to appeal from orders made by HHJ Horwitz QC on 18 December 2009 was adjourned to a full court. No final decision on permission or the merits was made.