W-L (A Child)

In family proceedings, the judge has a broad discretion to decide how an application is pursued, including summary dismissal where it lacks enough merit to justify continuation. Robust case management remains subject to fairness: the court must have sufficient information to make a properly founded welfare decision and must not deprive a party of a proper opportunity to answer the case. An appellate court should respect that discretion where the judge had a full written application and submissions, could identify no good reason to interfere with a recently agreed contact order, and reasonably concluded that the matters relied on did not justify a further hearing. A short period of contact may be insufficient to demonstrate that carefully structured arrangements should be varied.

The mother appealed from Moor J’s dismissal of her application to vary a contact order made by Peter Jackson J in January 2017. The order provided for contact between the child and her father in England and St Lucia, supported financially by the maternal grandfather.

The mother relied on the father’s alleged failure to comply with an undertaking, difficulties during earlier contact, the maternal grandmother’s changed position and the grandfather’s inability or unwillingness to continue funding travel. Moor J determined the application summarily after considering the application, written submissions and other documents, without oral evidence. The central issue was whether that robust case-management decision was within the judge’s discretion or denied the mother a fair opportunity to establish that the order should be varied.

1. Appeal dismissed. Moylan LJ, with McFarlane LJ agreeing, held that Moor J was entitled to dismiss the variation application summarily.
2. Family judges have a broad discretion to determine how an application should proceed. This includes dismissing an application which is not necessarily groundless but lacks sufficient merit to justify continuation. The judge must consider whether there is a solid reason, in the interests of the child, to embark upon or continue investigating the matters raised. The procedure selected must meet the child’s welfare needs.
3. That discretion has limits. Robust case management is impermissible where the procedure deprives a party of a proper opportunity to answer the case or deprives the court of evidence necessary to make reliable welfare findings. The principles identified in Re C (Family Proceedings: Case Management) [2013] 1 FLR 1089 and Re B (Case Management) [2013] 1 FLR 963 mark the relevant boundaries.
4. On the facts, Moor J had a full written application, extensive submissions and the documents to which the parties referred. He was therefore in a position to decide that there was no good reason to interfere with the carefully agreed January order or to allow the application to continue. The asserted non-compliance with the father’s undertaking, the contact difficulties, and the changes concerning supervision and funding did not disclose a sufficient prospect of variation.
5. Only one period of contact had occurred under the order. That was insufficient to give the carefully structured arrangements a fair opportunity to develop. The fact that dismissal did not resolve every practical difficulty did not alter the issue before the court. The order below was upheld.

1. Court of Appeal (Civil Division): dismissed the mother’s appeal from Moor J’s order.
2. High Court of Justice, Family Division: Moor J dismissed the mother’s application to vary the January 2017 contact order after hearing submissions and considering the written materials.