ER (A Child) Re (No 2)

Permission to appeal in children proceedings requires a real prospect of success or another compelling reason. An appeal may succeed only where the first-instance decision was wrong or was unjust because of a serious procedural or other irregularity.

Case-management decisions to limit evidence or determine an issue summarily are permissible where proportionate and fair. A judge’s repeated decisions in favour of one party do not, without more, establish apparent bias. Restrictions on contact may properly be maintained where the evidence supports concerns about emotional harm and the child’s welfare.

The father applied for permission to appeal against a series of orders made by HH Judge Tolson QC in proceedings under the Children Act 1989 concerning arrangements for his six-year-old daughter.

The challenged decisions concerned costs, reductions and supervision of contact, the refusal to recuse the judge, and the refusal to reopen the question of staying contact. The father alleged procedural unfairness, judicial bias, insufficient evidence, and parental alienation by the mother. The central issues were whether the decisions were wrong or procedurally unjust, and whether there was a real prospect of a successful appeal.

1. The application for permission to appeal was refused. The father’s challenges were substantially out of time and, in any event, disclosed no real prospect of success or other compelling reason for an appeal.

2. An appeal can succeed only if the first-instance judgment or order was wrong, or if it was unjust because of a serious procedural or other irregularity. Permission requires a real prospect of success or another compelling reason for the appeal.

3. Judge Tolson was entitled to make costs orders in relation to hearings caused by the father’s failure to return the child after contact. The fact that one hearing was ex parte and another took place on limited notice did not prevent a proportionate costs order.

4. The judge was entitled, in exercising case-management powers, to determine the October 2015 contact issue on limited oral evidence and submissions. A court may restrict evidence to what is necessary to resolve the issues, provided that each party receives a fair hearing.

5. The March 2016 decision to suspend staying contact and require supervised contact was supported by the father’s own statements and conduct. The evidence justified the conclusion that contact in its existing form was detrimental to the child.

6. There was no evidence of bias. A judge’s acceptance of one party’s evidence or arguments, and repeated decisions adverse to the other party, do not by themselves establish bias or apparent bias.

7. The judge was entitled in April 2017 to confine the hearing to the identity of the contact supervisor and to refuse to relitigate issues already determined. The continuing supervision arrangements were within his discretion.

8. Overall, the first-instance approach was proportionate and fair. The evidence supported the findings that the father’s conduct caused or was likely to cause emotional harm, that he lacked insight into its consequences, and that supervised contact was required for the time being.

• High Court (Family Division): Permission to appeal against the various orders was refused.
• Family Court, Central Family Court: HH Judge Tolson QC made the orders concerning costs, contact, recusal and the supervision arrangements which were challenged.