Re O (Minors) (Family Appeals)
| Jurisdiction | England & Wales |
| Judgment Date | 1998 |
| Date | 1998 |
| Year | 1998 |
| Court | Court of Appeal (Civil Division) |
Practice – Appeals in family cases – Approach to be adopted to application for leave to appeal.
Where a family appeal exceptionally raises a difficult point of law or principle the judge at first instance might well wish to grant leave to appeal himself. However, where the proposed appeal seeks only to challenge the exercise of his judicial discretion it is generally more helpful if the judge leaves the decision as to whether or not the appeal should be entertained to the Court of Appeal.
Case referred to in judgmentsM (child’s upbringing), Re[1996] 2 FCR 473.
AppealThe father of two children appealed with leave from a decision of Judge Russell-Vick sitting in the Medway County Court on 4 August 1997 whereby he refused to make a residence order in his favour. The facts are set out in the judgment of Thorpe LJ.
The father in person.
Rozanna Malcolm (instructed by Stephens & Sons, Kent) for the mother.
THORPE LJ.The father and the mother married in February 1988. They had two children, ‘D’ who is now eight and ‘T’ who is seven. The marriage effectively broke down in 1990 at which time the father left this jurisdiction and travelled the world for a period of about four years. During his absence the mother obtained a divorce. By an ancillary order the care and control of the two children was committed to her. Sadly, she has had for a long time an alcohol dependency and that led to the children’s names appearing on the child protection register on 15 October 1992. Those same problems led to the children being accommodated on a voluntary basis with Mrs and Mrs B as foster parents in February 1993. Later that year the mother remarried. For a short time D and T returned to her care; but it did not last and by the autumn of 1994 they had returned to live with Mr and Mrs B. Effectively they have been with the Bs as the primary carers ever since.
The father re-entered their lives in 1995 and since that reunion in the summer of 1995 he has striven to express his deep attachment to the children through whatever opportunity for contact has been afforded to him. As early as 3 November 1995 he issued his first application for residence orders in respect of the children. That application was the subject of a number of interlocutory
directions before its final listing on 18 December 1996 before Assistant Recorder Mitchell. The assistant recorder dismissed the father’s application for residence. It seems that he did so by a reserved judgment, but unfortunately the text of that judgment has not survived other than in the form of a note made by the father’s solicitor, which Miss Rozanna Malcolm, for the mother, agrees.
The judgment of the assistant recorder has had a strong influence on the father’s estimation of the children’s needs and how he should...
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J-S (Children)
...permission to appeal. However, permission was rarely granted by the trial judge in a family case. Applying Re O (minors) (family appeals)[1998] 3 FCR 226, and Re R (a minor) [1996] Lexis Citation 2264, there were good reasons for that. There was a need for at least as much, and possibly mor......