RR v MM

Permission to appeal requires a realistic, rather than fanciful, prospect of success or another compelling reason for the appeal to be heard. If permission is granted, the appeal succeeds only where the lower court’s decision was wrong or unjust because of a serious procedural or other irregularity. A judge’s repeated adverse decisions, lengthy involvement in a case, or consideration of correspondence criticising the judge does not of itself establish apparent bias. A recusal application is ordinarily made to the judge concerned. In exceptional family proceedings, a restriction under section 91(14) may be proportionate where repeated applications have caused substantial harm and all realistic avenues have been exhausted.

The father applied for permission to appeal against orders made by HHJ Newton in the Family Court in February 2018. The orders refused further direct contact with the child, refused further expert or other investigative steps, declined to recuse the judge, and imposed a three-year restriction under section 91(14).

The proceedings had lasted about ten years and included several unsuccessful applications and appeals concerning contact. The Court of Appeal had dismissed an earlier appeal in 2017 and the Supreme Court had refused a further appeal. The central issues were whether there was an arguable appearance of bias, procedural unfairness or privacy infringement, whether the section 91(14) order was proportionate, and whether further evidence or intervention should have been ordered.

1. Permission and appeal threshold. Permission was refused in all respects. Under rule 30.3 of the Family Procedure Rules 2010, permission required either a real prospect of success or another compelling reason. “Real” meant realistic rather than fanciful. If permission were granted, the appeal could succeed only if the decision was wrong in law, outside the range of reasonable decisions, or unjust because of a serious procedural or other irregularity.
2. Bias and recusal. There was no evidence of actual or apparent bias. A judge’s repeated refusal of applications, or extensive prior involvement in the proceedings, did not establish bias where each application had been determined on its merits. The recusal application was properly made to the judge concerned; transferring it to another judge would have been inappropriate merely because the applicant sought recusal.
3. Correspondence and fairness. The father’s private and confidential letter requesting that the case be removed from HHJ Newton could properly be considered by the court. Allocation and case management were judicial functions, and the letter contained no material beyond criticisms he had made openly. There was no indication of predetermination or an unfair hearing. Articles 6 and 8 provided no arguable basis for intervention.
4. Section 91(14) and further evidence. The three-year restriction was an exceptional, proportionate order of last resort. The proceedings had lasted ten years, repeated applications had caused stress to the child and mother, there had been no material change, and all realistic avenues had been explored. The refusal to order further reports or expert evidence was also within the range of reasonable decisions and was substantially constrained by the earlier Court of Appeal decision that further investigation would be futile or harmful.
5. The order of HHJ Newton therefore stood, including the provision that no further application could be made without leave for three years.

• Family Court: HHJ Newton refused further direct contact and further investigative or expert steps, declined recusal, and made a three-year order under section 91(14).
• High Court (Family Division): Permission to appeal was refused in all respects. The Family Court order stood.