B (A Child), Re

For a second appeal, permission requires an important point of principle or practice, or another compelling reason. A mere prospect of success is insufficient. An appeal from a rehearing requires a real prospect of success or another compelling reason.

Delay in producing written reasons does not itself invalidate the process where sufficient oral reasons were given before the rehearing and no prejudice resulted. Appellate courts must assess lay justices’ reasons objectively and cannot fill material gaps by benign inference. A shared residence order regulates care rather than fixing a child’s location. In welfare decisions, the weight assigned to competing factors remains a matter for the judge’s discretion, subject to appellate restraint.

The parents of an eight-year-old child had previously shared her care. The mother sought to relocate from Manchester to London following her pregnancy and intended establishment of a home there with her new partner. The father opposed relocation and sought a residence order to prevent it.

The Tameside Family Proceedings Court declined to permit relocation and made a shared residence order. On the mother’s appeal, HHJ Roddy allowed the appeal on 3 June 2013 and directed a rehearing. Following a hearing de novo, she granted the mother permission to relocate on 28 October 2013. The father sought permission to appeal both orders, raising procedural fairness, the adequacy of the magistrates’ reasons, and alleged errors in the welfare evaluation.

Lady Justice Macur DBE gave the judgment, with which Lord Justice Moore-Bick and Lord Justice Kitchin agreed. Both applications for permission to appeal were refused.

1. Under rule 52.13(2) of the Civil Procedure Rules 1998, a second appeal requires an important point of principle or practice, or another compelling reason for the Court of Appeal to hear it. A prospect of success alone does not amount to a compelling reason.
2. Under rule 52.3(6), permission to appeal from the hearing de novo required a real prospect of success or another compelling reason. Neither threshold was satisfied.
3. A failure to give written reasons before a new hearing could constitute a significant procedural irregularity. Here, however, HHJ Roddy had given sufficient brief oral reasons before the rehearing, had already announced the result, and had not determined the merits in those reasons. The subsequent delay in producing the written reasons did not of itself undermine the fairness of the appeal, particularly as the father identified no actual prejudice or obstruction to preparing his case.
4. The appellate judge was entitled to assess the lay justices’ written reasons objectively. A benign reading could not properly supply missing findings or assume that the correct legal principles had been applied. The justices appeared to have used a shared residence order to fix the child’s location rather than to regulate care, suggesting that the wrong legal criteria may have been applied.
5. A request for clarification of the justices’ reasons, if made, should have been made before the appeal was heard and concluded. Seeking clarification after the rehearing had begun would have required a rewriting of the decision, rather than a mere amplification.
6. HHJ Roddy’s rehearing judgment was coherent and logical, supported by ample evidence, and based on sound legal principles. The weight given to the father’s substantial contribution to the child’s welfare was within the judge’s discretion. That contribution did not necessarily outweigh the other welfare considerations, and the overall evaluation fell within the permissible range.

1. Court of Appeal (Civil Division): On 21 January 2014, refused permission to appeal both orders. The judgment is reported at [2014] EWCA Civ 19.
2. Manchester County Court: HHJ Roddy allowed the mother’s appeal from the magistrates’ decision on 3 June 2013, then conducted a hearing de novo and granted permission for relocation on 28 October 2013.
3. Tameside Family Proceedings Court: Declined to permit relocation at that time and made a shared residence order.