X v Y (Permission to Appeal)

Permission to appeal requires a realistic prospect of success, rather than a fanciful one. An appellate court should not grant permission merely because a judge adopted a broad evaluative approach, provided the reasoning was properly founded on the evidence. Robust judicial questioning or criticism does not establish apparent bias where the judge’s mind remained open and the proceedings, viewed as a whole, do not indicate a real possibility of bias. A narrowly framed procedural issue may justify permission even where the substantive challenge fails, particularly where the form of an order affects its enforceability.

The father sought permission to appeal financial remedy and child arrangements orders made after the breakdown of the parties’ marriage. The challenged matters included the assessment of his earning capacity, the unequal division of capital, liability for capital gains tax, maintenance, alleged procedural irregularities, apparent bias, and the form of the child arrangements order concerning their younger child.

The application followed refusal of permission by HHJ Tolson Q.C. The central issue was whether any ground had a realistic prospect of success.

1. Permission test. The court applied the undisputed test in [2019] EWCA Civ 895: permission requires a real, realistic prospect of success, not a fanciful one.
2. Earning capacity. The challenge to the assessment of the father’s earning capacity had no realistic prospect of success. The assessment was based substantially on the father’s own oral evidence and documents. The judge had distinguished earning capacity from past earnings and had given adequate reasons. Although inferences from non-disclosure must be properly drawn and reasonable, the finding was open on the evidence.
3. Capital division and CGT. Permission was refused on the challenges to the unequal capital division and the allocation of capital gains tax. The judge was entitled to take account of the children’s welfare, the mother’s inheritance contribution, the capitalised maintenance claim and the father’s earning capacity. The CGT issue had been addressed through the mother’s open offer and was corrected consistently with the original decision.
4. Apparent bias. Applying [2001] UKHL 67, the question was whether the fair-minded and informed observer would conclude that there was a real possibility of bias. Robust expression is not, without more, evidence of a closed mind. As explained in [2016] EWCA Civ 492, the proceedings must be considered as a whole. The judge’s interventions and criticism of the father’s evidence did not meet that threshold.
5. Child arrangements order. Permission was granted on the narrow issue whether the arrangements should appear in the operative part of the order rather than only as a recital. If the order remained a recital, there was no obvious enforcement route and a fresh application might be required.
6. Permission to appeal was refused on all other grounds.

• High Court (Family Division): Permission to appeal from orders made by HHJ Tolson Q.C. was granted only on the limited issue concerning the form and enforceability of the child arrangements order; permission was refused on all other grounds.