England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(MR JUSTICE JOHNSON)

		Royal Courts of Justice Strand London WC2A 2LL Wednesday 30 January 2002

1. LORD JUSTICE THORPE:Mr M seeks permission to appeal an order of Johnson J given on 5 November 2001. Johnson J has for some time been the judge with the responsibility for deciding the issues in relation to the two children of the parties: K, who was born in the summer of 1990; and F, who was born in spring 1992.
2. A major decision was reached on 2 April 2001. The resulting order by paragraph 7 imposed a prohibition on both parties under section 91(14) of the statute to refrain from issuing any further applications without the prior permission of the court. It was to obtain that permission that Mr M issued his application of 3 September, which was refused by the judge on 5 November 2001.
3. What were the reasons for asking the judge to give him permission? They are stated at paragraph 4 of the application in form C2. Mr M said that the children had spent four weeks holiday, enjoyed comfortably with their father, and returned to their mother on 31 August. He then says that the mother blamed the children for the failure of her relationship and that she had since become histrionic and wished for the children's death in a car crash with their father. He says that on 2 September 2001, at about 7.30pm the mother had hit F with a wooden spoon.
4. That material was apparently supplemented by referring the judge to a letter which Mr M wrote on 28 August 2001 to the Official Solicitor asserting that there had been a change of circumstances. The assertions really went to the breakdown of the relationship between the mother and a Mr C and its consequential impact on the children.
5. The judge made the essential point that the whole purpose and intention of the order contained in paragraph 7 was to give the children respite from litigation. He said that there had been over 20 court hearings, including two hearings in the Court of Appeal. He then pointed out that the application that Mr M sought leave to issue was once again to reopen the crucial question of residence. The judge said that that was precisely what had been determined on 2 April, only seven months earlier.
6. The judge continued:

"Nothing that the father now says, either orally on in his written application, satisfies me that there is any basis for reopening a matter that was decided as recently as 2 April."

7. Mr M rightly refers to the decision of this court in Re A (Application for Leave) [1998] 1 FLR 1, where the court established that in these circumstances the simple question for the judge was: did the application demonstrate that there was any need for reviewed judicial investigation?
8. Johnson J decided that the application did not demonstrate that need. He said, specifically, that neither the written material nor the oral submissions had satisfied him of that need. That was a matter for the judge. It would only be in the rarest circumstances that this court would intervene with such a discretionary conclusion. Nothing that Mr M has said has begun to persuade me that his proposed appeal would have the least prospect of success. As a matter of commonsense, if a judge has settled the question of residence in April and has firmly imposed a litigation moratorium on both parents, an application to reopen that very question of residence only seven months later, has no realistic prospects of success. This application is in my judgment hopeless.
9. For those reasons it is dismissed.
Permission to appeal refused.