B (A Child), Re

Lord Justice Wall:

Introduction

This is the judgment of the court, to which both of its members have contributed.

We heard this case on 21 May, pursuant to an order made by Wilson LJ on 24 April 2009 that it was to be listed before a three judge court as an application for permission to appeal with the appeal to follow if permission was granted. At the outset of the argument we invited Mr Peter Horrocks, for the applicant, to advance his arguments as though for a substantive appeal, and at its conclusion, we announced our decision, but reserved our reasons. We granted permission to appeal, but dismissed the substantive appeal. We made various ancillary orders designed to give effect to our decision, and refused a prospective application by Mr. Horrocks for permission to appeal to the House of Lords.

In our judgment, this case raises a number of points of interest for the profession relating: (1) to second appeals in children’s cases; and (2) to the application of the welfare test under section 1 of the Children Act 1989 (the 1989 Act) to a case involving a residence dispute between the father and the maternal grandmother of a child.

We do not think that it is in the interests of the child concerned to be identified. We accordingly impose reporting restrictions. This judgment is being written anonymously, and nothing must be published which in any way identifies the child. In the interests of the child’s anonymity, we propose to identify him only by an initial, and the other relevant parties by reference to their relationship with him.

The appeal

The maternal grandmother of H, a boy born on 12 December 2003, appeals against an order made by His Honour Judge Richards sitting as a judge of the High Court in Norwich on 3 April 2009. The judge was hearing an appeal from the family proceedings court, which had refused the father’s application for residence and had made an order that H continue to reside with his maternal grandmother. The justices made contact orders in favour of both of H’s parents. On appeal, the judge reversed that decision, and directed that H should reside with his father with effect from 25 April 2009. The judge made orders for staying contact with the father in the interim, and refused both a stay and permission to the grandmother to appeal. The judge’s order was subsequently stayed by Wilson LJ pending the determination of the grandmother’s application for permission to appeal.

H’s father, mother and grandmother were all represent