W v W

This is my judgment in the appeal in this matter, which was listed before me on Tuesday, 7 October 2025. It was written on that day and on Thursday, 9 October 2025. It was sent out in draft on Friday, 10 October 2025. It is handed down on Tuesday, 14 October 2025. No attendance was required. I invited typographical corrections by 4 pm on Monday, 13 October 2025. I have caused it to be anonymised before it is lodged on the National Archives given it relates to the upbringing of a child.

The decision which is being appealed is that of HHJ Wright dated 28 January 2025. She gave an ex tempore judgment. She declined to give the appellant permission to make an application for a section 8 Children Act order in relation to his youngest child, being in place an order under section 91(14) of the same Act which required him to obtain permission before bringing that application. (I shall in this judgment refer to permission rather than leave, following Cobb J in Re P v N (s.91(14): Application for Permission to Apply: Appeal) [2019] EWHC 421 (Fam).)

The appellant, Mr W (the father), has been represented in front of me by Mr Shojaei. He is instructed on a direct access basis. Accompanying him was Mr Hudson who purported to be a McKenzie Friend. I did not accept him as such given that the father was represented. The matter, however, was proceeding in open court, so I made no objection to him remaining in court. Mr Shojaei was not counsel before HHJ Wright. The father was then represented by Janet Bazley KC. Further, the father had solicitors acting for him at that time, Irwin Mitchell.

The respondent, Ms W (the mother), was not represented before me and was not represented before HHJ Wright. Neither I nor HHJ Wright required her attendance. By my order of 25 May 2025, when I provided for this hearing, I expressly invited but did not require her attendance. I did receive from her, and read, a position statement for this hearing. She wants me to reject the appeal.

The appeal was listed for one day for permission and, if permission were to be granted, the appeal would follow immediately thereafter. Oral submissions only took up slightly less than half a day. Mr Shojaei adopted the amended skeleton argument of Janet Bazley KC and made limited further submissions. I took the view, given the issue in this case and the ongoing litigation between the parties, it was necessary to give this judgment in writing and so reserved it.

I have been provided with a bundle with over 1,700 pages. I made clear that was far too long for me to read. I have concentrated my reading on the judgment of HHJ Wright, the transcript and agreed note of the proceedings in front of her, and the skeleton argument in support of the appeal of Ms Bazley.

I do note the very substantial delay from the end of January to the middle of October in determining this appeal. The delay does not help matters. It is of particular relevance here because in July 2025 a further application was made by the father in relation to another of the parties’ children (in relation to whom, because she was over 16 years old, there was no continuing section 91(14) order). HHJ Wright made an order that application could not proceed. I am told that decision is also being appealed. That appeal is not before me.

I will set out the historical background summarily. I have largely taken this from the judgment of HHJ Wright. The parties had three daughters. The eldest is now 19 years old. The middle one is now 17. The youngest is now 14.

The parties separated in 2021. The children remained living with the mother. In 2022 an application was made for a Child Arrangements Order and a lives-with order by the father in relation to the two younger children. The children became more resistant to seeing their father. Various professionals became involved: a family therapist, an independent social worker, and a psychologist. The children became represented in the proceedings by a Guardian, Ms Mills.

Allegations were made against the father of coercive and controlling behaviour and allegations were made against the mother of alienation. As an example, the mother has referred me to a risk assessment of Ms Mills, when she was a family court adviser before she was the children’s Guardian, in which Ms Mills says she is very concerned about the father using coercive control against the children and the mother. There were no findings either way, however, because prior to the 3-day hearing, which had been listed, an agreement was reached between the parties.

The proceedings resolved by an order of HHJ Wright on 29 February 2024. What follows is my paraphrase of the order.

On 3 December 2024 the father asked for permission from the court to bring a section 8 application. HHJ Wright listed this to be heard remotely on 28 January 2025. She recorded that there was no requirement for the mother or the children’s Guardian’s solicitor to attend, but they had permission to file a short response. That gave rise to an email enquiry by the father’s solicitors as to whether the Guardian had been reappointed. (The father says that he had in the previous September asked for the Guardian’s assistance and been told she was no longer involved.) I am not aware of any response to that email, but it is clear from subsequent emails that there had been no reappointment.

On 20 January 2025 the former Guardian, Ms Mills, emailed the court, copying information that she had received from the mother. That was not sent to the father’s solicitors. On 22 January 2025, HHJ Wright emailed Ms Mills and said she would be content to receive a short Position Statement from her. She confirmed she had not been reappointed as a Guardian. That email was not copied to the father’s solicitors until it was forwarded by the judge during the hearing.

On 27 January 2025 HHJ Wright was forwarded by the court an email from the mother dated 22 January 2025.

Through the information received from Ms Mills on 20 January 2025 the judge was made aware that the police were investigating Mr W for harassment. There was copied to her, by Ms Mills, an email sent to the mother by the police on 5 January 2025 recording that the father had been interviewed under caution, and bail conditions were imposed on him. I record here that Mr Shojaei informed me that the conclusion of this investigation is that the police had decided to take no further action.

In the course of the hearing HHJ Wright became aware that the father’s team had not had sight of the emails from the mother and Ms Mills. On becoming so aware she took steps to promptly send them to the father’s counsel and solicitors.

Further, there is a document from Ms Mills apparently in response to the request for a position statement, which is described as ‘Previous Guardian’s Formal Response to Father’s application for leave to make a new application’. That is dated 28 January 2025. That was sent to the father’s team on the morning of 28 January 2025 in advance of the hearing. The information that the father had been arrested and bailed for harassment is noted in the document from Ms Mills.

As already recorded the court determined that the father should not have permission to bring his application for child arrangement orders.

A few days later, on 4 February 2025, the father made his application to appeal that decision. Time then passed before transcripts were obtained (of the judgment and the exchanges with counsel) and after they were obtained (or in relation to proceedings before judgment, a note agreed by the judge) an amended skeleton argument in support of the appeal was filed. That came before me in May 2025 when I gave leave to amend the skeleton argument and directed this hearing to consider permission to appeal, with the appeal to follow if permission were granted.

In short, the grounds of appeal are (1) serious procedural irregularity and (2) a wrong decision. The arguments advanced will be considered below.

A point, however, that can be taken shortly is that the judgment makes reference to the application concerning two children. The application did refer to two children, but it was made clear by Ms Bazley in her position statement and orally, that before the court was only an application in relation to the youngest child because the second child was already 16, and so there was no section 91(14) order permission required to bring an application for her.

The test for the grant of permission to appeal is set out in rule 30.3(7) of the Family Procedure Rules. Permission to appeal may be given only where:

The test for allowing an appeal is set out in rule 30.12(3) that the appeal court will allow an appeal where the decision of the lower court was:

I am reminded by Ms Bazley that the appeal court has, by rule 30.11(1), all the powers of the lower court and she invites me to allow the appeal and exercise my own discretion by substituting an order which gives permission to the father to apply for section 8 orders for the child, or alternatively set aside the order and direct a rehearing.

I note that given I have all the powers of the lower court it is of course open to me, if I allow the appeal, to exercise my own discretion the other way, so as to refuse permission.

Mr Shojaei was more modest. He said I should allow the appeal and remit the matter to be reconsidered by another judge.

The law on applications for permission has not been argued in front of me. I have been referred to Re P v N (s.91(14): Application for Permission to Apply: Appeal) [2019] EWHC 421 (Fam). That tells me, at paragraph 14, that Wall and Thorpe LLJ in Re S [2006] EWCA Civ 1190 declared that ‘the applicant has to demonstrate that there is a need for renewed judicial investigation on the basis that he has an arguable case’. This is an amalgam of two slightly different tests: ‘an arguable case with some chance of success’ and a need for ‘renewed judicial investigation’. The two tests are said to complement each other.

I do however note that the decision of Cobb J is primarily focused on the proper process for these applications: should they be without notice or on notice? The conclusion he reaches is that they can be considered without notice but if it appears that the application shows sufficient merit (i.e. the applicant has demonstrated a prima facie case) it should be listed for an on-notice hearing to allow the respondent to make representations.

Finally, it is appropriate for me to note that HHJ Wright was the judge who made the order in 2024. She is the judge who made the order that imposed the s. 91(14) orders.

The arguments advanced for serious procedural irregularity leading to an unfair hearing that are put by Ms Bazley relate to the correspondence between the judge and Ms Mills and the emails from the mother and the fact that Ms Mills appointment as a Guardian had been terminated and her gathering of information for her position statement consisted only of communicating with the mother.

It is said that the judge was so influenced by this correspondence and the position statement of Ms Mills that she had prejudged the application. And it is said that the judge was at fault for only providing copies of the emails that she had received towards the end of submissions by father’s counsel. Further, it is said that the judge was wrong to rely on an authority of Hayden J, Re F v M [2023] EWFC 5, because that was a case in which there had been very serious findings of domestic abuse and here there were no findings. I say immediately that I reject that ground. The judge only relies on that authority for the proposition that further proceedings can have an impact on a child’s welfare. That does not need serious findings of domestic abuse to be made to be true.

I am conscious that this was a decision made by a busy judge and a judge who had experience of this case.

I do not consider that the judge prejudged the application. It is apparent from the transcripts that have been provided that she only became aware during the hearing that she had received communication that the father’s team had not, and that she forwarded that information on to the father’s team when she became aware that they did not have it. It is obvious retrospectively that she alone had that information, but as I have said this was a busy judge who, I have no doubt, has to keep many balls in the air. I think it entirely likely that she had not spent time considering who had the information until the hearing was on her. I can see force in Ms Bazley’s complaint that this information was received towards the end of her submissions and that disadvantaged her application.

I do not however need to consider whether that point is one of such weight to warrant permission to appeal or allow the appeal itself, because of the position statement of Ms Mills.

There are two fundamental problems with that position statement:

Whilst it might be said that the judge was just attempting to be practical by engaging Ms Mills at this stage, when combined with the fact that Ms Mills made enquiries only of the mother, the conclusion is unavoidable that this was a serious procedural irregularity. Put simply it was unfair.

Having reached that conclusion it is not necessary for me to analyse whether the decision was wrong otherwise than by procedural irregularity in so far as considering whether the appeal should be allowed.

Further, in these circumstances it is not appropriate for me to analyse the judge’s substantial decision as has been done in the skeleton argument and oral argument that I have heard. I cannot escape the conclusion that the judge’s decision may have been influenced by the procedural irregularity. Whether by me, or by another, the decision will need to be remade.

I do have the power under FPR 30.11(1) to make the decision as to whether the father should or should not have permission to bring section 8 proceedings. As I have recorded above, Ms Bazley invited me to determine that the father should have permission though Mr Shojaei invited me to remit it to be heard by another judge.

I am conscious that there has been significant delay in these proceedings already and I am aware from her position statement that the mother wants these proceedings drawn to an end as soon as possible.

It is tempting then to exercise my discretion to substitute my own decision for that of the judge and to read across from the attack on the judge’s reasoning the arguments the father to make as to why permission should be given.

However, I do not consider it would be fair for me to do that. The father needs to have the opportunity to put his argument afresh and the mother needs to be aware that a decision is being made on the principal application – whether or not the father should have permission to bring section 8 proceedings – and to advance her reasons why I should not.

I make clear at this stage, given what I have said about Re P & N above, that I am not listing this for an inter partes hearing because I have formed a view that I am likely to grant permission, but because I want to avoid any further delay and in the circumstances of the appeal it would be futile to try and shelter the mother from the application.

I am not however going to remit the matter to another judge. The background of this matter is now something of which I have some grasp, and I am going to find time to deal with this matter promptly.

I will give permission to bring the appeal, and I will allow the appeal.

I will list this matter before me for a 2-hour hearing to consider whether permission should be given for the father to bring his application for section 8 orders.

In advance of that hearing, I expect the parties to agree a bundle, and two days before the hearing exchange concise position statements.

Insofar as the mother wants special measures at that hearing, I would ask her to set out what she wants, and if she wants to attend it by video link, I would agree to that.

I would ask that a draft order is prepared by Mr Shojaei to reflect these terms.