P & N (Section 91(14): Application for Permission To Apply: Appeal)

On an application for permission to make a children application while a Children Act 1989 section 91(14) restriction is in force, the court may initially filter the application on paper or without notice. If the application demonstrates a prima facie case, an arguable case and a need for renewed judicial investigation, the respondent should ordinarily be given notice and an opportunity to make representations. A grant of permission is not itself a best-interests decision under section 1(1). The court must apply a fair and proportionate procedure, having regard to the family’s circumstances, the risk of renewed litigation and the overriding objective of the Family Procedure Rules 2010.

The father sought permission to make a further section 8 application concerning his two sons, despite an existing three-year restriction under section 91(14) of the Children Act 1989. His application was granted by HHJ Plunkett without the mother being heard. The mother appealed, contending that she should have had an opportunity to make representations once the application had passed the initial filter. The appeal concerned both the proper procedure for determining permission applications and whether the judge had applied the correct legal approach.

1. Appeal allowed. The order granting permission was set aside and the application was remitted for determination on notice to the mother and the children’s solicitor.
2. The appropriate procedure, following Re S [2006] EWCA Civ 1190, is initially to consider the application on paper or, where appropriate, at a without-notice hearing. If it is hopeless, it may be dismissed without involving the respondent. If it demonstrates a prima facie case, an arguable case and a need for renewed judicial investigation, the court should ordinarily list it on notice so that the respondent can make representations.
3. Without-notice grants of permission should be very rare. The respondent may correct factual inaccuracies, identify the absence of any genuine need for renewed investigation, and address the effect of further litigation on welfare, fairness and expense. The overriding objective in rule 1 of the Family Procedure Rules 2010 requires the process to be just and fair.
4. On these facts, the long and toxic litigation, the limited new evidence, the continuing polarisation and the likely costs made it especially important to hear from the mother. The judge’s failure to do so was seriously unjust because of procedural irregularity.
5. The judge also erred by treating the permission decision as a pure welfare or best-interests decision. Section 1(1) of the Children Act 1989 did not apply, although welfare could be relevant. The decision concerned whether the statutory threshold for renewed investigation was met.

• High Court (Family Division): The mother’s appeal from HHJ Plunkett’s order of 28 August 2018 was allowed. The application for permission was remitted for determination on notice to the mother and the children’s solicitor.