AEY (Permission to Appeal Civil Restraint Order)

An appellate court may determine an application for permission to appeal on paper where the procedure is proportionate and the application does not require oral investigation. The judge’s order must state what was decided and give reasons sufficient to explain the result and enable appellate review; a transcript is unnecessary.

Permission requires a real prospect of success or another compelling reason. A court may refuse permission, certify an application as totally without merit and prevent reconsideration at a hearing where the application is bound to fail. Repeated wholly unmeritorious applications may justify an extended civil restraint order, provided the affected litigant is given a fair opportunity to make representations unless the circumstances are exceptional.

The applicant, the father of two children, made seven applications for permission to appeal orders arising from lengthy private and public law family proceedings. The applications alleged, among other matters, that the judge, the mother and social workers had concealed wrongdoing. Several applications were late, and all were determined on the papers.

The court considered whether permission should be granted, whether time should be extended, whether applications should be struck out or certified as totally without merit, and whether an extended civil restraint order should be made. The central issues were the proper approach to permission applications, paper determination and written reasons, relief from procedural default, and the safeguards governing civil restraint orders.

1. Permission to appeal. Under Family Procedure Rules 2010 rule 30.3(7), permission required a real, meaning realistic rather than fanciful, prospect of success or some other compelling reason to hear the appeal. Under rule 30.12(3), an appeal could succeed only if the decision was wrong or unjust because of procedural irregularity. None of the seven applications disclosed an arguable ground or procedural irregularity. Permission was therefore refused and the applications were certified as totally without merit.
2. Appellate review. The judgment under appeal had to be read as a whole and in context. The appellate court should not search for error through narrow textual analysis or substitute semantics for substance. Reasons had to identify the essential elements of the decision, explain why the parties had won or lost, and permit appellate review.
3. Paper determination. A hearing was not required for every family application. Applying the overriding objective and active case-management duties in rules 1.1 and 1.4, a judge could decide a plainly unmeritorious application on the papers. There was no requirement for a transcript where no oral judgment had been delivered. The order and written reasons had to record the decision with sufficient clarity.
4. Time and procedural default. Time was extended for one application because institutional confusion had contributed to the delay. Relief was refused in the other late applications. The delay was substantial, unsupported by evidence and pursued after final hearings, while the applications had no underlying merit. The relevant administration-of-justice, promptness, explanation, compliance, prejudice and welfare considerations therefore required finality.
5. Civil restraint order. The court had to consider a civil restraint order after refusing permission or striking out an appellant’s notice as totally without merit. The repeated unmeritorious applications satisfied the threshold for an extended order. Such an order protected court resources and the process from abuse; it did not remove access to justice, since applications could still be made with permission. Given the complicated litigation history, the father had been invited to make written representations. An extended order for two years was made, requiring applications concerning or connected with the proceedings to be made in writing to the judge. Notice to the mother and children before permission was granted was withheld in order to protect their welfare.

The applications concerned orders made by HHJ Tolson QC in earlier private and public law family proceedings. The High Court (Family Division), presided over by Mrs Justice Knowles, refused permission on all seven applications, struck out three appellant’s notices and imposed an extended civil restraint order.