Permission to Appeal & Barder in Lockdown

Private Law (Child Arrangements Programme (CAP))

12 June 2020

Two short but troubling issues in troubled times:
Can the FR Appeal Court hold a one-sided oral permission hearing without formal notice to the Respondent?
Does the pandemic/lockdown amount to a Barder event?
Plus Arbitration simply is the answer, especially for children.

Permission to Appeal Hearing
I have recently had to consider whether it is acceptable in a financial remedy cases for the appeal court, on appeal from a District Judge to Circuit Judge, to have an oral permission hearing (by telephone) in which only the Appellant is heard and no formal notice is given to the Respondent. My initial reaction was obviously not, there would have to be a refusal on paper followed by the Appellant making a formal request for an oral hearing with notice to the Respondent. That is still my view but, I was surprised to discover that that is not quite as clear-cut as it may seem:

FPR 30 & PD30A:
As per the note in the Red Book [3.1104[2]] in relation to FPR 30.3(5) “the general rule is that permission to appeal will be considered without a hearing (i.e. on paper: PD30A para 4.10)”.
By FPR 30.3(5) if the Appeal Court refuses permission to appeal without a hearing, then the Appellant may request that that decision be reconsidered at a hearing (unless the Appeal Court has ruled that out) which request must be filed with 7 days (6).
That request must at the same time also be served on the Respondent: PD30A para 4.13.
If the request for a hearing is granted then at least 4 days before the hearing the PA’s advocate must in a brief written statement inform the court and the Respondent of the points to be made and the reasons why permission would be granted despite the lower court’s reasons for refusal, 4.14.
The Respondent is permitted to attend the hearing but not required to do so unless requested by the Court to do so : PD30A para 4.15.
By 4.22, in most cases applications for permission will be determined without the court requesting submissions from or, if there is an oral hearing, attendance by the Respondent and where the Court does not request submissions or attendance from the Respondent, costs will not normally be allowed to a Respondent who volunteers such submissions or attendance but if the Court does make such request it will normally allow costs (4.23-4).

However, there is an unreported case from 2011 which is summarised very briefly in Family Law Week and referred to as O v O where it is said that Baron J said that “as an alternative” to all of the above the Judge may list the application for a hearing and that that hearing may be a one-sided hearing unless the judge indicates that that there should be an inter partes hearing for example with the appeal to follow if permission is given. Also, divers opinions were expressed in other cases at around the same time e.g. AV v RM (Appeal) [2012] EWHC 1173 (Fam) and NLW v ARC [2012] EWHC 55 (Fam) but, these cases were all decided before PD30A and are largely based on certain practises then in the High Court and assumptions about the FPRs that may no longer ring true.

Whilst there can be no argument about inter partes on notice hearings, can it really be the case that there is a route to a one-sided hearing that is not set out in the FPR 30 and PD30A and which therefore has not been arrived at by the specified Request and Notice procedure? I do not immediately see how that could be and, even if there were an unmentioned inherent jurisdiction or assumptions made about an unstated overlap with the very different CPRs, such a hearing could surely not take place without formal Notice and Directions without breaching basis principles?

Barder in Lockdown
There has been am awful lot of speculation about whether or not the current pandemic and/or lockdown can amount to a significant supervening event sufficient for set-aside under Barder principles. I am going to stick my head above the parapet and say ‘yes, of course it can’. But then it is the ‘can’ and therefore the ‘when’ that is the problem and of course, that is case specific. For instance, where one party can definitely no longer pay the lump sum necessary to buy the other out as a direct result of the pandemic, that is, without more, likely to be regarded as a new but significant supervening event. On the other hand the mere existence of the pandemic and/or lockdown will not be relevant if it has caused no more than a temporary problem that can be overcome by practical measures in due course and it is worth remembering that the ‘credit crunch’ was not regarded as a Barder event in Myerson [2009] EWCA Civ 282 on the facts of that particular case and, that it was stated in that case that fluctuations in shares and house prices, even dramatic ones will not suffice – premature or short sighted applications will not work and will be a costly mistake, as the usual financial remedy costs rule does not apply.

Arbitration is the Answer
Having recently attended the Institute of Family Law Arbitrators (IFLA) seminar (remote), I should also take the opportunity to blow the Arbitration trumpet again, particularly in respect of the very new developments that now allow Children Law Arbitrators, such as myself of course, to deal with cases that involve removal from the jurisdiction. Sir Andrew McFarlane, President, described this area as being particularly suited to arbitration with the opportunity that arbitration uniquely offers for effective, speedy and private resolution at a time when the Courts already have an enormous backlog and will, when lockdown ends, be overwhelmed by the inevitable upsurge in work. Sir James Munby added that it also provides a speedy solution for holiday abroad cases that will otherwise not get before a Judge in time. A common misunderstanding is that children Arbitration cases cannot deal with welfare reports and independent assessment of the children’s wishes and feelings. That is not right, an Independent Social Worker’s report can be ordered and of course can be arranged privately with the reporter and, according to a timetable suitable to the parties. Indeed, the whole process of Arbitration is dictated by the parties, so that it can be as speedy as is required, with hearings in any suitable location or held remotely on any day, including weekends, at any time of day of time and with no danger of there being insufficient court time on the day of the hearing or an adjournment into the remote future.

I have attached the new Family Law Arbitration Children Scheme Arbitration Rules 2020 (4th edition) and the Application Form for a Children Scheme Arbitration but the first stage is for the parties to choose an IFLA qualified Arbitrator, either by contacting one directly or via the IFLA website and, there is everything to be said for the parties agreeing to first contact an Arbitrator to establish whether the case is suitable for arbitration and to raise any particular requirements of speed, location, timing etc.


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