Re F (A Minor) (Permission to appeal)

Approved Judgment

This judgment was handed down remotely at 2pm on 17 th March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

THE HONOURABLE Mr Justice Hayden

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

This is an application for permission to appeal findings of fact made by Her Honour Judge Helen Arthur, following a three-day hearing on 26 ^th, 27 ^th and 28 ^th June 2024 at the Family Court sitting in Wolverhampton.

At paragraph 98 of her detailed judgment, the Judge conveniently summarised her factual findings against both parents:

“98. Having reviewed all the evidence carefully, I make the following findings:

1. On 23/3/2014, when M was 7 months pregnant with Z, during an argument F ripped M's shirt, grabbed her throat, slapped her, and pushed her to the ground, causing her to fear that she would miscarry. M defended herself with a wooden stick or spoon from the kitchen – not a knife which is an exaggeration by F. M did not rip F's shirt or smash a laptop.

2. On 9–10/5/2014 (only 3 weeks after Z was born) F grabbed M's arm (causing the injury she photographed) and slapped her.

3. On 14/11/2018 (when M was around 6 months pregnant with O) F shouting at M to get off the telephone and threatening to slap her. F has not proved that M bit F's hand.

4. In September 2019, F threatened to throw a vase at M which she kept in the hallway, witnessed by Z.

5. Both Ps were verbally and emotionally abusive towards each other, but F's behaviour was considerably worse and more frequent, and F has not proved that M did it regularly in front of the Cs.

6. F followed M and the Cs to and from school, which was inappropriate as he knew contact would not be facilitated.

7. M fed hot sauce to J as a punishment for sucking her tongue, and occasionally to O as a punishment for sucking her thumb, but rarely to Z. M then persuaded J and Z to retract the allegations because she feared that the Cs might be removed from her care, either by social services or F. F encouraged J and Z to disclose M's use of hot sauce as a punishment, but the allegations themselves were true.

8. F has physically chastised the Cs on numerous occasions, by hitting Z with a belt on at least one occasion, and hit all three Cs with a stick with more force than a tap, on more than one occasion.

9. F has not proved that M has physically chastised or abused the Cs by hitting or pinching them.

10. F has not proved that M has verbally abused F or the Cs.

11. F failed to protect the Cs from the harm he asserts they were suffering at the hands of M, albeit that I have not found that M in fact posed a risk to the Cs.

12. M has made up a false allegation against F, and manipulated the Cs to make a false allegation against F, that he gave them hot sauce, but not regarding any of the other allegations.

13. F has not proved that Mrs S sought to influence any of the Cs against F.

14. F has not proved that M neglected the Cs by:

a. Abandoning O in the Gambia, or in respect of her burns whilst she was there.

b. Abandoning her older son in the Gambia.

c. Failing to supervise the Cs adequately such that O cut her forehead when she fell off a bed.

d. Leaving the Cs home alone whilst she works.

15. F has exaggerated all of these neglect allegations (apart from the last one) in an attempt to damage M's reputation and credibility within proceedings, and bolster his application for the Cs to live with him.

16. Unless specifically stated, where I have found that an allegation was not proved, I do not make a counter-finding that the party making the unproven allegation has exaggerated or made up the allegation.”

The Judge also made the following additional finding:

“99. I therefore find that F poses a risk of physical and emotional harm to M and the Cs, which requires assessment before the Court can consider whether, and if so how, contact with F should be reintroduced. I do not find that M poses any risk to the Cs that would require reconsideration of the Cs living with her.”

The application for permission to appeal was filed on 2 ^nd January 2025 and issued on 3 ^rd January 2025. It was therefore, in excess of five months out of time. However, the reasons for the delay in filing the application are far from straightforward. On 12 ^thOctober 2024, the Applicant sought permission to appeal from the Judge, out of time, explaining that he had only recently received the judgment.

On 25 ^th October 2024, HHJ Arthur heard the application for permission to appeal out of time and permission to appeal. The Judge delivered a written judgment on the application. In relation to permission to appeal out of time, the Judge set out her approach thus:

“4. As F's email is outside the time limit for such applications, the first step is permission to appeal out of time. On 9 ^th September 2024, I received email correspondence from F (via the Court Office) dated 27 ^th August 2024 asking “if there has been any comeback from the judge” yet. I had delivered the judgment via email over a month earlier on 25 ^th July 2024. As F was not legally represented I could not email it to him directly, so I asked M's solicitor to forward it to F to avoid any delay in him receiving it officially via the Court Office. M's solicitor confirmed that he had done so on 26 ^th July 2024. However, I asked both him and the Court Office to send it to F again just to make sure, which M's solicitor did on 9 ^th September 2024. On 11 ^th October 2024, I received further email correspondence from F (via the Court Office) dated 10 ^th October 2024 complaining about the delay in receipt of the judgment, which he said he had only received from M's solicitor on 9 ^th October 2024. It is unclear why he did not receive it from M's solicitor or the Court Office on any of the previous 4 occasions when it had been sent. The Court Office received confirmation of receipt from F's email address when they re-sent the judgment on 11 ^th September 2024 and F's email address has remained consistent throughout as he continues to email the Court Office from the same address now.”

Having set out the history of the communications, as above, the Judge gave F “the benefit of the doubt” that he did not receive the judgment until 9 ^th October 2024. Having seen the industrious way in which he pursues his case, particularly on the written documentation, I consider the Judge was entirely right to accept F's account of late receipt of the judgment. As the Judge said, “it is hard to see what benefit F would have from pretending not to have receipt of the judgment and emailing the Court to chase it…”. Because an important jurisdictional point hinges upon it, I set out the Judge's conclusions:

“5. There is therefore no evidence other than F's word for it that F did not receive the judgment on 26 ^th July 2024. However, it is hard to see what benefit F would have from pretending not to have received the judgment and emailing the Court to chase it on 27 ^th August 2024, and I am aware that sometimes emails go directly to the “junk” folder without alerting the recipient, so I will give F the benefit of the doubt that he did not receive the judgment until 9 ^th October 2024 as he states. I therefore grant him permission to appeal out of time as he sought permission within 21 days of receiving the judgment.”

Having granted permission to appeal out of time, the Judge then turned to consider the permission application. The question arises however, as to whether the Judge, on 25 ^th October 2024, retained jurisdiction to consider the out of time application at all. This requires consideration of the Family Proceedings Rules 2010 (FPR), 30.3(3):

(3) An application for permission to appeal may be made –

(a) to the lower court at the hearing at which the decision to be appealed was made or, if the hearing is adjourned to a later date, the hearing on that date; or

(b) to the appeal court in an appeal notice.

In McDonald v Rose and others [2019] WLR(D) 13, [2019] 1 WLR 2828, [2019] WLR 2828, [2019] 2 All ER 318, the Court of Appeal reviewed the approach to interpreting the “date of the decision of the lower court which the appellant wishes to appeal”. Underhill LJ, Vice President of the Court of Appeal reviewed the authorities dealing with when the 21-day period, in that case in the Civil Procedure Rules (CPR), started to run and the procedure that must be adopted in respect of any application to the lower court for permission to appeal. There is no distinction, on these provisions, to be drawn between the FPR and the CPR.

Underhill LJ identified the starting point as Sayers v Clarke Walker [2002] EWCA Civ 645, [2002] 1 WLR 3095:

“This establishes that “the date of the decision of the lower court which the appellant wishes to appeal” for the purpose of CPR 52.12 (2) (b) is the date that the decision is formally announced in court. Thus the 21 days within which an appeal must (in the absence of an extension) be filed run from that date and not the date – which may be days, or sometimes even weeks, later – that the formal order recording the decision is issued....