A Mother v A Father & Anor

Applications to extend time for appealing a case management order should be determined by applying the established approach to procedural default, including whether the delay was trivial and whether the application was made promptly. Vulnerability may be relevant to the practical ability to comply, but it is not automatically determinative.

Permission to appeal requires a real, rather than fanciful, prospect of success or another compelling reason. An appeal against a case management decision is confined to material error of principle, consideration of irrelevant matters, failure to consider relevant matters, serious procedural unfairness, or a decision outside the generous ambit of discretion. In children’s proceedings, an earlier compromise does not create issue estoppel or prevent later investigation where the court considers that necessary for the child’s welfare.

The mother sought permission to apply out of time for permission to appeal, permission to appeal, and, if permission were granted, determination of an appeal against a case management order made by HHJ Miller on 14 March 2024.

The order permitted consideration of allegations and evidence predating a June 2022 compromise and provided for further case management. The mother argued that the earlier compromise was binding, that historical allegations were disproportionate and harmful, and that the admission of earlier witness evidence was procedurally irregular. The father and Children’s Guardian opposed permission.

The central issues were whether the application should be admitted out of time and whether any proposed ground disclosed a realistic prospect of successfully challenging the case management decision.

1. Extension of time. The application to make the permission application out of time was granted, although only on a fine balance. The delay was significant, the application was not prompt, and the court could not ordinarily consider the merits when deciding extension of time. Nevertheless, the mother’s vulnerability and the practical limitations of direct-access representation were relevant on the particular facts. The decision was expressly confined to this case.
2. Permission to appeal. Under Family Procedure Rules 2010, rule 30.3(7), permission required a real prospect of success or another compelling reason. The prospect had to be realistic rather than fanciful. If an appeal proceeded, rule 30.1(2) permitted intervention only where the decision was wrong or unjust because of serious procedural or other irregularity. The court rejected the older formulation that the decision had to be plainly wrong.
3. Case management discretion. An appeal against a case management decision is subject to a limited scope of review. Interference requires material error of principle, reliance on irrelevant matters, failure to consider relevant matters, serious procedural unfairness, or a decision outside the generous ambit of discretion. The judge had considered the relevant factors, the public interest in finality, the welfare context, and the need for further case management.
4. Earlier compromise. Re B (Minors Care Proceedings) (Issue Estoppel) established that issue estoppel does not apply in children’s cases. The compromise therefore could not prevent the court from revisiting allegations where that was considered appropriate. Even if treated as a court finding, the Family Division may revisit apparently settled matters and order fact-finding where necessary. The earlier order had not, in any event, been reopened in the manner alleged.
5. The proposed grounds did not disclose a real prospect of success. The order did not automatically admit every historical allegation or piece of evidence; it established a structure for further case management. Admission of transcripts was not shown to be procedurally irregular. Permission to appeal was refused, the proposed appeal was not reached, and the application was described as totally without merit.

• High Court (Family Division): permission to make the application out of time granted; permission to appeal against HHJ Miller’s case management order refused.