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.
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)  EWCA Civ 447 per Jackson LJ at . 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  EWHC 3544 (Fam) should be considered:-
- Take into account all the circumstances of the case;
- A stay is the exception rather than the rule;
- 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)“;
- Apply a balance of harm test which considers the likely prejudice to the successful party;
- 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.
The court should only award an interim stay pending the decision on permission to appeal where:-
- The grounds of appeal are not fanciful; and
- 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.
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By Gemma Adams