This article deals with the interplay between permission to appeal and stay applications following an order made under Section 8 of the Children Act 1989.
The matter came to be determined recently in the case of Re HH (A Child: Stay of Order pending Appeal) [2022] EWHC 3369.
The facts of the case are not unique. The father applied for a child arrangements order to spend time with his nearly 3-year-old son, which the mother objected to, alleging that the father had sexually and physically abused him. A fact-finding hearing was heard over six days and the court found that the allegations were not made out.
As a consequence the court ordered on 11th November 2022, that direct contact should commence on 26th of December 2022. At the time of the hearing the father had not had direct contact for over a year and was only having indirect contact by video.
The mother filed an appeal on 5th of December 2022, challenging the findings and alleging that she was subjected to procedural unfairness during the hearing and seeking a stay of proceedings.
On 16th of December 2022, the time for the mother to perfect her grounds of appeal and skeleton argument in support, was extended to 13th of January 2023, but the application for a stay was not dealt with.
On 22nd of December 2022, there was an urgent email to the court from the mother’s instructing solicitors asking for the application for a stay to be considered as a matter of urgency, as contact was due to commence on 26th of December 2022.
The application came before Mr Justice Mostyn the following day, 23rd of December 2023. At that hearing, it was unclear whether any application was made from the trial judge for either permission to appeal or for the order to be stayed. The court said that while the rules do not require an application for permission to appeal or stay to be made to the trial judge, as a matter of prudence it should be done, and it would be extremely bad practice not to do so.
At the hearing the judge referred to his decision in NB v London Borough of Haringey [2011] EWHC 3544 setting out the five principles that should be adopted. To paraphrase:
- the court must take into account all the circumstances of the case;
- a stay is the exception, rather than the general rule;
- a party seeking a stay should provide cogent evidence that the appeal will be stifled or rendered nugatory unless a stay is granted;
- the court in exercising its discretion applies, what is in effect a balance of harm test in which the likely prejudice to the successful party must be carefully considered; and
- the court should take into account the prospects of the appeal succeeding and only where there are strong grounds of appeal or a strong likelihood of success is shown, should a stay be considered.
The court was clear that where the application for a stay was being considered alongside an application for permission to appeal the principles should be forcefully applied, because it is only in such circumstances that the court considering the question of a stay can fully and fairly assess whether the grounds of appeal are strong or whether there is a strong likelihood of success of an appeal.
Further, where permission to appeal is refused the application for a stay will also be refused.
The situation, however, is different where the application for a stay is heard in advance of the application for permission to appeal. In such a case the court should be thinking of awarding an interim stay pending the determination of the permission to appeal application and the court should not consider the merits of the appeal (the fifth principle), unless it is considered that the grounds of appeal are fanciful, as refusal would stifle the proposed appeal or render it nugatory.
If an interim stay is awarded the court should give directions to bring the permission to appeal application before the court, at the soonest opportunity and for the respondent to the appeal to make submissions in writing under PD 30A paragraph 4.22, as to whether permission to appeal should be granted or a full stay of execution of the order be awarded.
In this case the court was of the opinion that the mother’s grounds of appeal were not fanciful. However, because the applications for permission to appeal and stay of the order were not made to the trial judge, the application for permission to appeal as it happened, was to be listed on a date after the order for direct contact was due to begin, on 26th December 2022. The court decided that not to order a stay would effectively render the application for permission to appeal academic, as direct contact would have commenced before the appeal was determined.
The takeaway from this case for practitioners is to adopt the principle of “prevention is better than cure” and make the applications before the trial judge at the first opportunity. It does not seem to have been done in this case, and as a result the situation arose where contact was due to start before any of the applications was due to be heard by the appeal court and an urgent application, by email had to be made the mother’s instructing solicitors. It was just fortunate that the court was able to deal with it on such short notice.
Where it is the case that an application for a stay is listed in advance of the permission to appeal application, the appeal court should apply the principles in the case of NB v London Borough of Haringey above, with the exception of the fifth principle, and grant an interim stay unless the grounds of the appeal are fanciful and implementation of any order pending the PTA decision would not irreversibly extinguish the viability of the proposed appeal. The permission to appeal application in such a situation should then be listed as soon as possible with the respondent given leave to set out in writing their opposition and whether PTA should be granted and/or a full stay of execution awarded.
