S v H & B

A first-instance judge cannot entertain an appeal from an order made by another first-instance judge. Where an order expressly grants liberty to apply to the judge who made it, any disputed application to vary or discharge the order should ordinarily be placed before that judge, particularly where judicial continuity is important. A different judge may make limited consequential orders by consent, as a practical measure, but that does not confer appellate jurisdiction or permit adjudication of disputed merits.

The proceedings concerned reporting restrictions and related restrictions imposed in private-law children proceedings. Russell J had made orders restricting the mother’s disclosure of information and had expressly directed that any application to vary or discharge the reporting restriction order be made to her. Following an application initially handled by Bodey J, the mother’s variation application was listed before Holman J. The mother, the fathers, the child’s guardian and Associated Newspapers Limited reached agreement on a limited relaxation of the restrictions. The central issue was the extent to which Holman J could deal with that agreed variation, and whether he could adjudicate any disputed request for further relaxation.

1. Holman J held that he had neither the right nor the power to sit on appeal from Russell J. Any application which in substance sought to challenge provisions made by Russell J had to be dealt with by Russell J or, ultimately, by the Court of Appeal.

2. Where the application amounted to an exercise of the express liberty to apply, the order itself directed that it be made to Russell J. The issues required consideration by the judge with detailed knowledge of the evidence and the case, making judicial continuity particularly important.

3. The court would not adjudicate disputed matters concerning the facts or merits of the underlying case, or the scope of any further relaxation. Any further application by the mother had to be issued afresh and expressly listed before Russell J.

4. By consent of all parties present, including Associated Newspapers Limited and the fathers, the court made a fresh reporting restriction order in less restrictive terms and discharged the earlier order. It also varied paragraphs 6 and 7 of the order dated 30 April 2015 to the limited extent necessary to give effect to that agreement. Those orders were made essentially as a consensual rubber stamp and did not involve determination of the disputed merits.

The judgment describes prior orders made in the same proceedings by Russell J, whose judgment was published as [2015] EWFC 36, and a subsequent consensual procedural order made by Bodey J. This was not an appeal from those decisions. Holman J dealt only with limited consensual variations and declined to determine any disputed merits.