D (A Child), Re

Lord Justice Wall :

This is an application by Mr. Flavio Marchese (the applicant) for permission to appeal against orders made by Her Honour Judge Laura Harris on 27 April 2009 in the Chelmsford County Court. I heard oral argument from the applicant, who was assisted by an Italian interpreter on 1 July 2009. I decided, both in the interests of time and because the applicant’s first language is not English, that it would be preferable if I were to put my decision into writing. This I now do. I should say that I have read, and re-read all the papers made available to me by the applicant, including the CAFCASS report dated 25 March 2008.

The nature and function of the Court of Appeal

I need to explain to the applicant the nature and function of the Court of Appeal on an application of this kind. I have to decide whether or not the applicant should be given permission to appeal to the full court. Rule 52.3(6) of the Civil Procedure Rules 1998 (CPR) which governs these applications, provides that I can only grant permission to appeal to appeal where –

the court considers that the appeal would have a real prospect of success; or

there is some other compelling reason why the appeal should be heard.

Many litigants come to this court thinking that it enjoys wider powers than it has. In reality, the Court of Appeal is a creature of Statute. Its day to day operation is governed by CPR. It is a court of review. It does not hear oral evidence. It does not listen to witnesses. It has to ask itself two essential questions in a case such as the present. The first is: did the judge make any error of law? The second is: has the judge exercised her discretion when hearing the case in such a way as to take her decision outside the ambit of what the lawyers call “reasonable disagreement”. In other words, was the judge plainly wrong?

It is important for the applicant to appreciate that I was not the trial judge. Had I been, I do not know what I would have done. I might have decided the case in the same way as the judge: I might not. However, what I would have done – or might have done – is irrelevant. Provided the judge has stayed within the rules, and exercised her discretion in a way which was properly open to her, there is nothing that this court can do to interfere.

My understanding of the applicant’s case – and I shall deal with his arguments later in this judgment – is that, in essence, the hearing was unfair and breached his rights under Article 6 of the European