No reappointment, no right to respond – a serious procedural irregularity

Chartered Legal Executive, Ian Whitbread, considers this recent decision by the appeal court concerning an application for leave to apply for an order, following significant breaches of due process.

W v W [2525] EWFC 356

This case related to an appeal by the father following the court refusing him permission to make a Section 8 application in respect of one of his children.

There had been previous proceedings concerning the parents about their children and regarding who the children should live with and spend time with. Those proceedings took place between 2022 and February 2024. During those proceedings a Guardian was appointed to on behalf of the children to represent their best interests.

A final order was made by agreement between the parents in February 2024 which provided for the children to live with the mother, the father to have monthly indirect contact and an order to prevent future applications being made, without first obtaining permission from the court.

In December 2024 the father applied for permission from the court to make an application under Section 8 of the Children Act 1989 and which was considered at a hearing in January 2025. Permission was ultimately refused by the Judge.

The father sought to appeal and relied on the fact that there had been a serious procedural irregularity. This consisted of the fact that prior to the hearing in January there had been email communication between the Guardian and the Judge, communication between the Guardian and the mother and a document prepared by the Guardian for the hearing even though the Guardian had not been reappointed in this new set of proceedings following the application made by the father. The Guardian had also not communicated with the father.

The father was only aware of the existence of the email communication during the hearing in January 2025 and the father relied on the disadvantage this caused him.

The appeal judge decided that there were 2 fundamental problems with the document prepared by the Guardian; firstly as the Guardian had not been reappointed and was not a party to the proceedings the Guardian had no right to prepare and provide such a document. Secondly, the document was drafted from information obtained from the mother only and not from any discussion with the child, and no discussions had taken place with the father. The appeal judge concluded that there was a real risk that the document drafted was biased.

In light of the fact the appeal judge found there was a serious procedural irregularity and this was unfair, the judge allowed the father’s appeal.