Your browser is out of date or unsupported. As a result, some elements of this website may not be fully functional. For the best possible user experience, it is recommended that you use the latest version of Chrome, Firefox or Microsoft Edge.
TV Edwards Solicitors Logo
Call us on: 020 3440 8000
  • About Us
    • Whitechapel Office
    • Clapham Junction Office
    • What Our Clients Say
    • Cybercrime and Fraud Warning
    • Pricing
    • Make a Secure Payment
  • Services
    • You & Your Family You & Your Family
      • Family and Children Law
      • Wills and Probate
      • Personal Injury
      • Dispute Resolution
      • Mental Health
      • Court of Protection
      • Community Care
      • Criminal Defence
    • You & Your Property You & Your Property
      • Residential Property
      • Property Disputes
      • Housing
    • You & Your Business You & Your Business
      • Commercial Property
      • Commercial Litigation
      • Business Crime and Fraud
      • Alcohol & Entertainment Licensing
    • _
  • Our People
    • Partners and Management Team
    • Family and Children
    • Property
    • Wills and Probate
    • Court of Protection
    • Criminal Defence
    • Dispute Resolution
    • Personal Injury
    • Alcohol and Entertainment Licensing
    • Mental Health
    • Community Care
    • Housing
  • News and Blogs
  • Careers
TV Edwards Solicitors Logo
  • You & Your Family
    • Family and Children Law
    • Wills and Probate
    • Personal Injury
    • Dispute Resolution
    • Mental Health
    • Court of Protection
    • Community Care
    • Criminal Defence
  • You & Your Property
    • Residential Property
    • Property Disputes
    • Housing
  • You & Your Business
    • Commercial Property
    • Commercial Litigation
    • Business Crime and Fraud
    • Alcohol & Entertainment Licensing
  • About Us
    • Whitechapel Office
    • Clapham Junction Office
    • What Our Clients Say
    • Pricing
    • Make a Secure Payment
  • Our People
    • Community Care
    • Court of Protection
    • Criminal Defence
    • Dispute Resolution
    • Family and Children
    • Housing
    • Alcohol and Entertainment Licensing
    • Mental Health
    • Partners and Management Team
    • Personal Injury
    • Wills and Probate
    • Property
    • Support Team
  • News and Blogs
  • Careers
Call us on: 020 3440 8000
×
  • Divorce
    • Divorce process
    • Finances
    • Civil partnerships
    • Child arrangements
  • Children
    • Child arrangements
    • Social services
    • Adoption
    • Special guardianship
    • Relocation
    • Abduction
  • Modern Parenting
    • Surrogacy
    • Fertility
    • Donor conception
    • Co-parenting
    • Adoption
  • Unmarried couples
    • Pre nups, post nups and pre partnership agreements
    • Cohabitation agreements
    • Separation
    • Finances for children
  • Domestic abuse
    • Domestic abuse
    • Forced marriage
    • FGM
×

Start typing to search.

    ×
    TV Edwards Solicitors Logo

    020 3440 8000

    enquiries@tvedwards.com

    Find us at Whitechapel and Clapham Junction

    Contact Us

    Please enter your first name(s).
    Please enter your surname.
    Please enter a valid email address.
    Please enter your contact number.
    Please select an option.
    Please enter a message.

    We’ll only use this information to handle your enquiry and we won’t share it with any third parties. For more details see our Privacy Policy.

    TV EDWARDS SOLICITORS LLP

    Important guidance on seeking a stay of an order pending the hearing of a permission to appeal application

    By Gemma Adams

    TV Edwards Gemma Adams Headshot Large

    Back to News & Blogs 6th February 2023

    Blog author thumbnail
    Gemma Adams
    Blog Family

    Mostyn J handed down judgment on 23 December 2022 setting out what factors should be considered when an application to stay (provisionally stop something that has been ordered from happening) has been made before permission to appeal a judgment has been considered.

    Background

    Proceedings concerned a boy aged 2 years and 10 months, referred to as “HH” in this judgment. His father applied for a child arrangements order seeking to spend time with HH. The mother opposed this application, alleging that the father has sexually and physically abused HH. A fact-finding hearing was heard for 6 days before Recorder Wood KC. This is a hearing where the court hears evidence about allegations made by either party and determines whether they are true or not on the balance of probabilities (more likely than not that the alleged incident happened). Judgment was handed down on 11 November 2022, and the court determined that the father had not sexually or physically abused HH. At the time judgment was given, the father had not had any direct (face-to-face) contact with HH for over a year, and so the judge directed that the father should have direct, unsupervised contact, initially for one hour, twice a week, commencing on 26 December 2022.

    What did the mother do next?

    On 5 December 2022, the mother filed a notice of appeal in the High Court seeking to challenge the findings made and alleging that she was subject to procedural unfairness during the hearing. The mother sought a stay of the proceedings, and a stay on any direct contact happening between HH and his father. On 16 December 2022, the President of the Family Division considered the application, and gave the mother until 13 December 2022 to file perfected grounds of appeal and a skeleton argument in support. He did not deal with the mother’s application for a stay and so the mother’s solicitors emailed the court, seeking that this be dealt with urgently, given that the date for the father’s first contact was fast approaching. This application was then considered by Mostyn J on 23 December 2022.

    Important to note – Mostyn J states that it is not clear whether the mother sought permission to appeal from the trial judge when judgment was handed down, and that although the rules do not require this, it is good practice to make such an application as stated by the Court of Appeal in P v P (Variation of Post-Nuptial Settlement) [2015] EWCA Civ 447 per Jackson LJ at [68]. Mostyn J went further and said that it would be “extremely bad practice” to not seek permission to appeal, and a stay (where applicable), from the trial judge, preferably at the time that the judgment is handed down.

    The following five principles as set out by Mostyn J in NB v London Borough of Haringey [2011] EWHC 3544 (Fam) should be considered:-

    1. Take into account all the circumstances of the case;
    2. A stay is the exception rather than the rule;
    3. The party seeking a stay should provide cogent (clear/logical) evidence that without a stay the appeal will be “stifled or rendered nugatory (of no value or importance)“;
    4. Apply a balance of harm test which considers the likely prejudice to the successful party;
    5. A stay should only be considered where there are strong grounds of appeal, or a strong likelihood of success is shown.

    Mostyn J states that these principles should apply forcefully where the application for a stay is being considered alongside the application for permission to appeal, whether by the trial judge, or appeal court. If permission to appeal is refused, then a stay will also be refused unless the appeal court decides to allow it pending any oral renewal hearing that the applicant is entitled to seek under FPR 30.3 (5).

    What happens if the application for a stay is considered before permission to appeal is determined?

    Mostyn J states that it would be inappropriate and fraught with potential error, for the appeal court to determine the fifth principle above (strength of the ground/likelihood of success) because this would pre-empt the permission to appeal decision, that the stay is seeking to preserve. The court should only be thinking of awarding an interim stay until the permission to appeal application can be considered by the appeal court.

    The court granting an interim stay would not require proof of strong grounds of appeal or likelihood of success. When considering an interim stay, the court need only be satisfied that the grounds of appeal are not fanciful. The focus should be on whether refusing the interim stay would mean that the appeal is nugatory (of no value of importance). The issue here is whether the father should be having direct contact with HH and if a stay is not granted, and that contact took place, in effect, it decides the very subject matter of the appeal. Mostyn J states that whatever he may think about the reasonableness of the mother’s stance, or her likelihood of success, if a stay is not granted, her proposed appeal is pre-emptively extinguished. If this is the consequence, then the court should normally grant the interim stay.

    Summary

    The court should only award an interim stay pending the decision on permission to appeal where:-

    1. The grounds of appeal are not fanciful; and
    2. Where implementation of the order pending the permission to appeal decision would irreversibly extinguish the viability (likely success) of the proposed appeal.

    Where an interim stay is awarded, the court should give directions to list the permission to appeal application at the soonest opportunity and for the respondent to make submissions (legal arguments) in writing under FPR PD 30A para 4.22 as to whether permission to appeal should be granted and/or a full stay awarded.

    What did the court decide in this case?

    Mostyn J decided that the grounds of appeal were not fanciful and an interim stay was granted.

    Contact our expert team of family lawyers

    Should you need advice on child arrangements orders we have a large expert team of lawyers who would be happy to assist. We can be contacted on 0203 440 8000 or by email: A_FamilyReferrals@tvedwards.com

    By Gemma Adams

    Related Services:

    You & Your Family
    Family Finances
    Child Arrangements

    More Articles

    Article Image

    Business Contracts in Uncertain Times: 4 Terms with increasing importance in 2023

    21st March 2023
    Article Image

    TV Edwards obtains damages for breach of children’s rights to education

    13th March 2023
    Article Image

    Who needs to pay for their care package?

    13th March 2023
    Article Image

    Doctrine of Frustration

    10th March 2023
    Article Image

    Life as a trainee solicitor at TV Edwards LLP

    27th February 2023
    Article Image

    Estimating the quantity of drugs sold

    15th February 2023
    All Articles 

    Contact Us

    020 3440 8000|enquiries@tvedwards.com|Whitechapel Office|Clapham Junction Office

    020 3440 8000
    enquiries@tvedwards.com
    Whitechapel Office
    Clapham Junction Office

    Cyber Essentials Accreditation Logo
    Lexcel Logo
    The Legal 500 – The Clients Guide to Law Firms
    Chambers 2021 Logo

    © 2023 TV Edwards LLP is authorised and regulated by the Solicitors Regulation Authority (465533) and is a Limited Liability Partnership registered in England and Wales number 0C325696. Details of the SRA Code of Conduct can be found at sra.org.uk. Registered name: TV Edwards LLP. Registered Office: 35-37 Mile End Road, London, E1 4TP.

    TV Edwards Solicitors Logo

    Contact Us

    Call us on: 020 3440 8000

    View our Whitechapel office

    View our Clapham Junction office


    • Quick Links
      • Pricing
      • Pay Online
      • Careers with TV Edwards
    • Insights
      • Blogs
    • Regulatory
      • Legal Disclaimer
      • Terms of Business
      • Accessibility
      • Privacy Policy – Website Users
      • Privacy Policy – General
      • Cookies
      • Complaints Procedure

    Find us on:


    TV Edwards Solicitors Logo
    • Divorce
    • Children
    • Modern Parenting
    • Unmarried couples
    • Domestic abuse
    © 2022 TV Edwards LLP is authorised and regulated by the Solicitors Regulation Authority (465533) and is a Limited Liability Partnership registered in England and Wales number 0C325696. Details of the SRA Code of Conduct can be found at sra.org.uk. Registered name: TV Edwards LLP. Registered Office: 35-37 Mile End Road, London, E1 4TP.
    Use of Cookies

    Our website requires the use of cookies. Enabling all cookies makes sure the website works as smoothly as possible, and also helps us to improve it. Some cookies are activated by default but tracking cookies aren't switched on without your consent.

    For our full policy, visit our cookies page.


    Using this tool will set a cookie on your device to remember your preferences.

    Necessary

    Necessary cookies enable core functionality of the website, including security, SRA Regulationand reCAPTCHA form verifications. It is possible to disable these cookies in your browser settings, but this could affect the functionality of the website.


    Recommended
    Off On

    Recommended cookies improve your experience of our site by helping to display our latest client reviews and embedded maps of our office locations. You can find full details on Google's privacy policy here.


    Analytics
    Off On

    We'd like to use analytics services provided by Google Analytics, Microsoft Clarity and Ruler Analytics to collect anonymous information from our visitors. The data we collect will help us to improve our website and services. Learn more about how we use these services and our commitment to safeguarding data in our Cookie Policy.

    Settings Save & Close
    020 3440 8000