H (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lady Justice Gloster,Sir Robin Jacob |
| Judgment Date | 11 June 2015 |
| Neutral Citation | [2015] EWCA Civ 583 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 June 2015 |
| Docket Number | Case No: B4/2014/3962 |
[2015] EWCA Civ 583
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
HHJ Farquhar
SD14C00594
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McFarlane
Lady Justice Gloster
and
Sir Robin Jacob
Case No: B4/2014/3962
Miss Kate Branigan QC and Mr Christopher Barnes (instructed by Harney and Wells Solicitors) for the Appellant
Mr Andrew Bagchi QC (instructed by Brighton and Hove City Council) for the Respondent
An interested party was represented by Miss Martha Cover
Hearing date: 6 th May 2015
The present appeal raises the following question: "When considering an application to extend the time for appealing in a family case relating to children, what regard, if any, should be had by the judge to the overall merits of the proposed appeal?" Although this is an issue which has been considered in the context of civil appeals generally, we have been told that this case is the first occasion the point has arisen at Court of Appeal level in a family case.
Having set the background in that manner, I should immediately go on to stress that this judgment is being prepared against a tight deadline necessitated by a full first instance hearing which is due to take place this week. In addition, the point arises in circumstances which are strikingly clear, thereby rendering a subtle and nuanced evaluation of such differences as there may be between the precedent regarding ordinary civil law, to which I will refer, and family cases, unnecessary. In the circumstances it is not my intention in this judgment to offer general guidance on the question of relief from sanctions, over and above that which already appears in the reported case law, nor to be drawn to identify any distinction relating to family law in the manner that counsel's submissions have sought to encourage. I should, however, record that I am currently unpersuaded that there is any ground for distinguishing family law, in this respect, from the ordinary run of cases.
Background
On 19 th September 2013 District Judge Gamba concluded public law proceedings with respect to four children. All four children had the same parents. Unfortunately the mother had for some time had substantial difficulties with her mental well-being and, as a result, she accepted that she was unable to care for the children. Prior to the commencement of proceedings the father had all four children in his care, including the youngest, a girl, W, born November 2012. Care proceedings were commenced when W was only four weeks old following concern about a suspected fall that the baby had had and as a result of growing local authority anxiety as to the father's ability to cope with the care of all of the children. The older children were born in 2003, 2007 and 2009; they were therefore aged 9, 6 and 4 years at the time of the final hearing. The local authority's application was for full care orders in relation to all four children. Their plan was for the eldest two children, X and Y, to be placed in long term foster care, but for the younger two children, Z, and the baby W, to be placed for adoption.
In the event District Judge Gamba rejected the local authority proposals with respect to the three eldest children. Instead, he entrusted them to the care of their father under supervision orders. In the course of his judgment he said this:
"It is clear from the evidence that the father offers good enough care for the children. I think that it is in fact more than this: I feel it is very good care. I am satisfied from the evidence that the father has separated from the mother and has reached a turning point, recognising that he must concentrate on the care of the children to the exclusion of his relationship. I am satisfied that he is intending to address his difficulties and has started to do this by engaging in counselling. I am satisfied that the children are for the main part doing well at school. I am satisfied that they have a significant attachment with the father."
The outcome favoured by the district judge with respect to young W was, however, different. He concluded that a full care order should be made and he made an order authorising the local authority to place W for adoption. The district judge's judgment runs to just over 23 pages. Twenty-one of those pages set out his analysis of the evidence and his conclusion with respect to the three older children. The section with respect to W runs to only two pages, one page of which is occupied by the text of Adoption and Children Act 2002, s 1 ["ACA 2002"]. Indeed, the district judge's total analysis with respect to the outcome for W is contained entirely within the compass of the following three sentences:
"I feel that the father does have further work to do in relation to his own situation and that coupled with the care of the three older children will occupy his time fully. I feel that the risk to W of returning to the father's care at this time is too great for the reasons given by the Guardian and [expert], and that therefore the only order to be made in her best interests is as sought by the local authority for a placement order. I also consider that the welfare of the child requires me to dispense with the consent of the parents."
Before the district judge the father was represented by counsel. This court has now been told that the father's counsel advised that there were no grounds of appeal. Nevertheless the father issued his own Notice of Appeal on 30 th October 2012 some 20 days outside the 21 day period during which an appeal should be lodged. His application for permission to appeal was considered on paper by HHJ Farquhar on 14 th November 2013. The judge recorded his decision in a court order in the following terms (after a recital noting that there was no information provided as to why the appeal had not been brought within the statutory time limit). The order reads:
"1. The appeal is out of time and there are no grounds set out as to why that time should be extended.
2. In any event if the Notice of Appeal had been lodged in time permission would have been refused on the grounds that:
(a) No error in law or procedure has been made out.
(b) The decision that was reached by the learned district judge was one that was well within his discretion to reach in a case of this nature.
3. Any request to extend the time limit and/or to renew the permission to appeal will be considered by a circuit judge at an oral hearing."
Despite the indication that an oral renewal of the permission application could be made, the father did not apparently take his appeal any further at that stage.
Matters moved on in W's life. She was placed with prospective adopters in January 2014. They issued an adoption application with respect to her in May 2014. That application triggered a response from the father who obtained the services of a solicitor and counsel, Mr Christopher Barnes. An application was made to District Judge Gamba for the father to have leave to oppose the making of an adoption order under ACA 2002, s47. The application was rejected. The father and his legal team sought permission from a circuit judge to appeal that refusal. At the same time, and with eyes well attuned to the Court of Appeal decision in Re: B-S [2013] EWCA Civ 1146, Mr Barnes re- drew the father's proposed grounds of appeal and applied to the circuit judge to renew the application for permission to appeal the original placement and care orders made in September 2013.
The father's two applications for permission to appeal were heard by HHJ Farquhar on 12 th November 2014. In the event permission to appeal against the September 2013 orders was refused, but the appeal on the issue of opposition to adoption was successful. In consequence, following a re-hearing, the father was given leave to oppose the adoption application. The adoption application is now set down for a five day hearing before Russell J starting 18 th May 2015. At that hearing, as a result of having been given leave to oppose the adoption under ACA 2002, s 47, the father's consent to adoption falls to be reconsidered in the light of the evidence and circumstances that are now prevailing.
Notwithstanding his success in achieving leave to oppose the adoption, the father, assisted by Mr Barnes, sought permission to challenge the judge's decision regarding his proposed appeal against the September 2013 order. On 18 th March I gave permission to the father to appeal HHJ Farquhar's decision on that point, and it was that appeal that this court considered on 6 th May 2015. At the conclusion of the oral hearing we announced our decision which was to allow the appeal, set aside the final care order and placement for adoption orders, replace them with an interim care order, and make ancillary directions designed to retain the validity of the adopter's adoption application, maintain the final hearing booked for 18 th May and render valid all procedural steps that had been taken with respect to the proposed adopter's application, notwithstanding the removal, as a result of our order, of the original placement for adoption order.
Relief from sanctions
Having now set the scene in deliberately general and non technical terms, it is necessary to describe with some precision the procedural point which is at the centre of this appeal.
Family Procedure Rules 2010 , Part 30 applies to appeals to the Family Court (FPR 2010, r 30.1 (1)(b)). Where the court makes no contrary direction, the appellant must file the appellant's notice within 21 days of the date of the decision of the lower...
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