Re HH (a child) (contact order: stay of order pending appeal) [2022] EWHC 3369 (Fam)

This article considers the recent case of Re HH and the principles of staying an order pending the appeal. The full case can be found here: https://www.bailii.org/ew/cases/EWHC/Fam/2022/3369.html

Background

The case concerned HH, a boy aged nearly 3 years. Father made an application for a Child Arrangements Order to have direct contact with HH after having no contact for over a year (Father was having twice weekly video contact). Mother opposed the application on the ground that Father had sexually and physically abused HH.

At the conclusion of a 6-day hearing Recorder Wood KC found as a fact that Father had not sexually or physically abused HH. In clear and unambiguous terms, she rejected the evidence of Mother and her supporting witnesses. Recorder Wood KC ordered that direct, unsupervised, contact should commence on 26 December 2022 initially for one hour, twice weekly.

On 5 December 2022, Mother filed a notice of appeal in the High Court. She sought to challenge the findings of fact and alleged that she was subjected to procedural unfairness during the hearing. In the appeal notice Mother sought a stay of the contact order.

Principles to be applied

Mother relied upon the decision in NB v London Borough of Haringey [2011] EWHC 3544 (Fam) where Mostyn J laid out the principles to be applied on an application for a stay pending the determination of an appeal. These principles were confirmed in the current case where Mostyn J considered that the principles should “apply forcefully where the application for a stay is being considered alongside the application for Permission to Appeal (“PTA”). This is equally the case whether the applications are being considered by the trial judge or by the appeal court.” The 5 principles being:

1. The court must take into account all the circumstances of the case.
2. A stay is the exception rather than the general rule.
3. The party seeking a 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 what is in effect a balance of harm test in which the likely prejudice to the successful party must be carefully considered.
5. The court should take into account the prospects of the appeal succeeding. Only where strong grounds of appeal or a strong likelihood of success is shown should a stay be considered.

Difficulties with considering a stay in advance of the PTA determination

The position is different where the application for a stay is being considered by the appeal court in advance of the PTA determination. In those circumstances Mostyn J considered it would be inappropriate for the appeal court to determine the 5^th principle as this would pre-empt the very PTA decision that the stay is seeking to preserve.

In such circumstances the court should only be thinking of awarding an interim stay to endure until the application for PTA is considered by the appeal court. The award of such an interim stay would not require proof of strong grounds of appeal or a strong likelihood of success; and instead, need only be satisfied that the grounds of appeal are not fanciful. The court should be focussing on whether the refusal of such an interim stay would stifle the proposed appeal or render it nugatory. The principles for an interim stay are:

1. The grounds of appeal are not fanciful AND
2. The implementation of the order pending the PTA decision would irreversibly extinguish the viability of the proposed appeal.

Conclusion

In the case of Re HH, an interim stay of the contact order was awarded. The decision on PTA and full stay pending appeal (if PTA granted) should be expedited.