In re HH (a child: stay of order pending appeal)
| Jurisdiction | England & Wales |
| Judge | MOSTYN J |
| Judgment Date | 23 December 2022 |
| Court | Family Division |
Children arrangements – Practice and procedure – Appeal – Stay of order – Interim stay pending grant of permission to appeal.
Practice and procedure – Children arrangements – Appeal – Stay of order – Interim stay pending grant of permission to appeal.
The case concerned a child, who was nearly 3 years old. The father had had no direct contact with the child for over a year but was applying to the court for direct contact; the mother opposed the father’s application on the ground that the father had sexually and physically abused the child. The father was currently having twice weekly video contact.
Following a six-day hearing, the recorder found as a fact that the father had not sexually or physically abused the child. She rejected the mother’s evidence and that of her supporting witnesses and ordered direct, unsupervised contact between the child and the father from 26 December onwards, initially for one hour twice weekly.
The mother filed a notice of appeal in the High Court, seeking to challenge the recorder’s findings of fact and alleging that she had been subjected to unfairness during the hearing. In her appeal notice, she sought a stay of the contact order, in the following terms:
‘The appellant seeks a stay of the proceedings and a stay on any direct contact ordered for the reasons set out in the appellant’s draft grounds of appeal attached to this notice. These issues must be explored thoroughly before it can be determined whether or not direct contact is appropriate’.
The appeal notice came before the President and on 16 December 2022 he extended the mother’s time for filing perfected grounds of appeal and the skeleton argument in support until 13 January 2023. He did not, however, deal with the application for a stay.
On 22 December 2022 the mother’s solicitor emailed the court, urgently asking that her application for a stay be considered before direct contact began on 26 December. The mother was relying on the decision in NB v London Borough of Haringey[2011] EWHC 3544 (Fam) and the issue was listed to be heard by the judge who had decided that case.
Held, granting the mother an interim stay—
(1) It was not clear whether the mother had sought permission to appeal and a stay of the contact order from the recorder. She certainly should have done. Although the rules did not require an application for permission to appeal to be made to the trial judge, it was good practice to do this, applying P v P (variation of post-nuptial settlement) [2015] EWCA Civ 447. The court would go further and say that it was extremely bad practice for an appeal to be mounted, whether from district judge to circuit judge, from circuit judge to High Court judge, or from High Court judge to the Court of Appeal, without seeking permission to appeal and a stay (where applicable), from the trial judge, preferably at the time that the judgment was handed down (see [3], below).
(2) In NB v London Borough of Haringey[2011] EWHC 3544 (Fam) this court had adopted and applied the principles set out in the Hong Kong case Wenden Engineering Services Co Ltd v Lee Shing UEY Construction Co Ltd (HCCT No 90 of 1999): ‘First, the court must take into account all the circumstances of the case. Second, a stay is the exception rather than the general rule. Third, the party seeking a stay should provide cogent evidence that the appeal will be stifled or rendered nugatory unless a stay is granted. Fourth, 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. Fifth, 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’. These principles were now routinely applied where a stay pending the hearing of an appeal was sought. They should apply forcefully where the application for a stay was being considered alongside the application for permission to appeal. This was equally the case whether the applications were being considered by the trial judge or by the appeal court. It was only in such circumstances that the court considering the question of a stay could fully and fairly assess whether the grounds of appeal were strong or whether there was a strong likelihood of success of an appeal. If permission to appeal was refused, a stay would also be refused unless the appeal court decided to allow it pending any oral renewal hearing that the applicant was entitled to seek...
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