Family Law Hub

Re P & N (Section 91(14): Application for Permission to Apply: Appeal) [2019] EWHC 421

The mother alleged that the judge had been wrong to grant the father’s application for permission to apply for a s.8 CA 1989 order.

  • In brief: Appeal allowed in circumstances in which a mother (“M”) alleged that the judge had been wrong to grant a father’s (“F”) application for permission to apply for a s.8 CA 1989 order during the life of a s.91(14) CA 1989 order without hearing from her, or receiving representations on her behalf. The judge at first instance had erred in his approach. The correct approach is as set out in Re S [2006] EWCA Civ 1190, from which the following guidance may be distilled:

    • the application for permission to make an application under s.8 CA1989 should in the first instance be considered on the papers, or at an oral hearing that can be without notice to the respondent, particularly in “certain sensitive circumstances…a case in which the stress of previous litigation has destabilised the family, and in which the fragile capacity of the resident parent may well be adversely affected by the service of an application for permission to apply”.
    • If the applicant seeks an oral hearing, it should not be denied.
    • If the application is without merit, then it can be dismissed at this stage, and the potential respondent may well have been spared any engagement with the process.
    • If, however, the application shows sufficient merit (i.e. the application has demonstrated a prima facie case that there is a renewed need for judicial investigation on the basis that he has an arguable case), the court should list the application for an ‘on notice’ hearing to allow the respondent to make representations (per para. 40). The type of reason envisaged might be a material change of circumstances, or an applicant who can demonstrate the development of some insight and access to appropriate therapy or support.

    The judgment demonstrates the courts’ attempts in these applications to take into account what are often inevitably difficult historic circumstances and to balance the opportunity for both parties to be heard, if appropriate. This is a wish to not necessarily involve a respondent prematurely since the courts are mindful of the potential stress to the resident parent and any children – particularly if the application is unmeritorious or unlikely to succeed. In this case, M had in any event been notified of the hearing in error by the children’s guardian, and so was in the worst position of knowing about F’s application, but not having been afforded the opportunity to make representations.

Case note, published: 23/09/2019


See also

Published: 23/09/2019


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