| Children — Residence order — Unsuccessful application by father — Oral application for permission to appeal — Function of Court of Appeal
In re W (Children) (Permission to appeal)
CA: Wall LJ and Bennett J: 26 July 2007
The function of the Court of Appeal on a permission application for residence and contact was limited to a review of the decision of the judge to see whether a prospective appellant had an arguable case, fit to present to the full court on appeal, that the order was “plainly wrong”.
The Court of Appeal so held in refusing to grant permission to appeal to W, the father of two children, from the decision of McFarlane J [2007] EWHC 649 (Fam) refusing him a residence order.
WALL LJ, delivering the judgment of the court, said that the family justice system was frequently, and quite unfairly, accused of administering “secret justice”. The reason hearings relating to children took place in private was to protect the privacy of the children and their families. However, the fact that the hearings and the judgments were given in private was capable of being misunderstood. Accordingly, their Lordships decided that in the present case as much as possible of what had occurred should be made public. The present case threw up the sort of issues which the family justice system had to address on a regular basis. Their Lordships wished to explain to litigants in person the limited role which the Court of Appeal had to play in applications for permission to appeal against orders for residence and contact. The only matter for the Court of Appeal on the application for permission to appeal was whether or not Mr W had an arguable case, fit to present to the full court on appeal, that the order was “plainly wrong”.“Plainly wrong” derived from the speech of Lord Fraser of Tullybelton in G v G [1985] 1 WLR 647. Although the case was well known to lawyers, it did not appear so well known to litigants in person, even those with a knowledge of the English and European jurisprudence. G v G was decided before the passing of the Children Act 1989 and the Human Rights Act 1998. It was also decided at a time when litigants did not need permission in order to appeal to the Court of Appeal in cases involving children. There was no doubt, however, that it remained the law and was binding on the Court of Appeal. Mr W and others in his position needed also to understand that the only order their Lordships could consider was that one under appeal. They could not go behind any of the earlier orders made in the case.
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