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Family Law

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26 JUL 2007

FAMILY PROCEEDINGS: Re W (Permission to Appeal) [2007] EWCA Civ 786

(Court of Appeal; Wall LJ and Bennett J; 26 July 2007)

The father, who was a litigant in person, sought permission to appeal against an order for supervised contact with the two children, aged 4 and 5, and also made an application to adduce fresh evidence. The judge had found that the father was not seeing the children because of his own behaviour, in particular the father was refusing to take up supervised contact with the children, supervised contact being necessary because the father could not be trusted not to express his hatred of the mother to the children. The father claimed that he was not having contact with the children because of a mixture of maternal deceit, the deliberate alienation of the children from him by the mother, and a gullible and corrupt family justice system, which had dishonestly and deliberately taken the mother's part.

Although the case raised no particular point of law or practice, it threw up the sort of issues that the family justice system had to address day in and day out in courts at different levels up and down the country. This was an opportunity for the Court of Appeal to examine the outcome of a private hearing in public and to decide whether or not there was any substance in the father's attack upon it as unlawful and corrupt. The submissions made by the father demonstrated that he, in common with many other litigants in person, thought that the Court of Appeal had powers on an application for permission to appeal that it simply did not have. The only matter for the court on an application for permission to appeal against an order was whether or not the applicant had an arguable case, fit to present to the full court on appeal, that the original order was plainly wrong. In reviewing the decision, the court had to consider: whether the judge arguably made any error of law in reaching his conclusion; whether there was, arguably, insufficient material on which the judge could properly have made the findings of fact and the assessments of witnesses that he did make; whether it was arguable that the order made was not properly open to him in the exercise of his judicial discretion; and whether there was, arguably, any error in the exercise of his discretion which enabled him to say that his order was, arguably, plainly wrong. Only if the answer to one of those questions was yes could the applicant be given permission to appeal. The court could not go behind any of the earlier orders made in the case. All the father's applications were without merit, and must be refused. This was not a case of parental alienation or maternal deceit; the only reason the father was not seeing his children was his irrational refusal to implement the court's order.

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