Re: HH (A Child: Stay of Order pending Appeal) [2022] EWHC 3369 (Fam). Factors to be taken into consideration when determining an application for a stay of implementation of a trial court’s decision pending the determination of an appeal.

This article provides an overview of a judgment handed down by Mostyn J on 23 December 2022 regarding whether a contact order made in private law family proceedings should be stayed pending an appeal against findings of fact.  The judgment sets out the key principles to be taken into account when an application for a stay is considered alongside an application for permission to appeal.

The case concerns HH, a two-year-old boy.  HH’s father applied for a Child Arrangements Order to spend time with him; prior to the application HH had twice weekly video contact with his father but they had not had any direct contact over a year.  HH’s mother alleged that the father had sexually and physically abused HH, and she vehemently opposed HH having any direct contact with his father.

A six day fact-finding hearing was conducted by Recorder Wood KC, on 11 November 2022 at the conclusion of which she handed down a judgment rejecting the mother’s allegations, her evidence and the evidence of her witnesses.  Recorder Wood KC ordered that direct, unsupervised contact should commence on 26 December 2022 at an initial frequency one hour, twice each week.

The mother filed a notice of appeal to the High Court on 5 December 2022 on the grounds that i) she sought to challenge the findings made, and ii) that she was subjected to procedural unfairness during the hearing.  In her appeal notice, the mother sought to stay both the proceedings and the order for direct contact.

The mother relied on a previous judgment of Mostyn J in the case of NB v London Borough of Haringey [2011] EWHC 3544 (Fam) where he adopted the five principles to be applied when considering an application for a stay of a trial court’s decision pending the determination of an appeal, which were set down in Wenden Engineering Services Co Ltd v Lee Shing UEY Construction Co Ltd (HCCT No 90 of 1999).  The five principles are as follows:

  1. The circumstances of the case must be taken into account;
  2. A stay is an exception rather than a general rule;
  3. The party seeking the stay should provide cogent evidence that the appeal will be stifled or rendered nugatory unless a stay is granted;
  4. In exercising its discretion the court applies is in effect a balance of harm test in which the prejudice to the successful party must be carefully considered;
  5. The prospects of the appeal succeeding – a stay should only be considered where there are strong grounds of appeal or a strong likelihood of success.

Mostyn J highlighted that these factors should be taken into account whether the application for a stay pending the determination of an appeal is considered by the trial judge or the appeal court as it is often the case that the application for a stay of a trial court’s decision is considered at the same time as permission to appeal.  In this case, the mother’s notice of appeal was placed before the President on 16 December 2022, he extended the time for her to file perfected grounds of appeal to 13 January 2023 but he did not deal with the application for a stay.

 

The application for a stay was considered separately by Mostyn J ahead of the permission to appeal stage. He held that it would be inappropriate for him to consider the fifth principle so as not to pre-empt the appeal court’s permission decision, and therefore he should only consider whether to award an interim stay.  He held that he need only be satisfied that i) the grounds for appeal are not fanciful, and ii) implementation of the order pending the permission decision would irreversibly extinguish the viability of the proposed appeal. Mostyn J made it clear that in circumstances where the implementation of the order can be reversed (such as a money judgment) then the stay decision should be left to the judge determining permission to appeal.

 

Mostyn J awarded an interim stay of the contact order, pending the decision on permission to appeal.  He was clear in his judgment that an interim stay in such circumstances should not be seen as establishing a precedent for, or any indication as to the outcome of, the full stay application.