England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM FAMILY DIVISION
(MR JUSTICE JOHNSON)
(Application of Respondent for PTA and EOT)

		Royal Courts of Justice Strand London WC2 Tuesday 15th May 2001

Tuesday 15th May 2001

1. LORD JUSTICE THORPE: This is an application for permission brought by H-P against an order which was originally made on 24th October 2000 but seemingly repeated in a subsequent order of 14th December 2000. The notice of application was lodged on 23rd January 2001 and the skeleton on 28th February. The application comes before me today in mid-May.
2. The applicant has undoubtedly a sincere sense of grievance at paragraph 17 of the order of 14th December, which simply says that his application for leave to make an application with regard to D's schooling is dismissed.
3. To understand that it is necessary to say that on 15th October 1999 a section 91(14) order was imposed with the judicial aim of limiting the number of applications being made in the case.
4. D, one of the two children of the family, is due to start at what I understand to be a Catholic boarding school, Woldingham, in September 2001. The father's application for leave was issued because he favoured an alternative school called the Gordon School. The judge, in refusing leave on 24th October, regarded the refusal as something quite unprecedented in the judicial range. I think with great respect to him that that was perhaps an exaggeration since orders of this sort, from my perception, are not that uncommon. Once a section 91(14) restraint is imposed there are instances in which applicants come forward for permission and there are instances which sometimes come to this Court for review where the application has been refused. The modern approach, as identified by this Court, is in deciding an application for permission after the imposition of a section 91(14) restraint, the trial judge must ask himself whether there is, from the point of view of good management within the case, the need for a trial. Is it demonstrated by the applicant that there is an issue that merits judicial investigation and the taking of time within the Court calendar?
5. Johnson J did not specifically direct himself in relation to that authority, but he did give strong reasons for his refusal of permission. First of all he said that the father's explanation for the necessity for a trial was entirely unconvincing. Secondly, he said that the father was raising the issue very much at the last minute simply to create another means of harassing the mother. The judge might have been right or he might have been wrong about that. He has had much experience of this family, he, sharing with Bennett J, most of the listings in the case. It therefore constitutes an exercise of judicial discretion founded upon an assessment of the applicant and of the dynamics within the family.
6. This Court would be very, very loathe to interfere with such an assessment. I understand that H-P feels that this is what this Court is here for, but that impression has to be measured somewhat against the realities within the case. If D's future schooling was to be the subject of a judicial investigation and determination then the timescale for that is now more or less exhausted. Johnson J, even in October, said that the father was seeking to raise the issue at very much the last minute. But now, in May, were I to grant permission there would then be the need to set up an appeal in this Court, giving every opportunity to the mother to support the judicial refusal. If the appeal succeeded all that H-P would have secured would be leave. He would then have to issue an application afresh, which would have to be properly prepared on evidence: maybe the mother would want to call a witness from Woldingham, maybe either or both would want a witness from Faulkner House, the school that D is currently attending. It is simply not practical to fit that within a timetable of now less than four months before the start of the Michaelmas term. It is very important that children should not live in uncertainty and doubt. If this little girl has the impression that she is working towards Woldingham, it is very doubtful whether her interests would be served by throwing that plan into question by the commencement of the litigation process.
7. So partly because the judge made a very firm assessment upon which to found his discretion and partly on the practicalities of the timetable, I unhesitatingly dismiss this application for permission.
ORDER: Application dismissed with costs