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Will Re H encourage more appeals out of time?

CoA considers extending time for appeal and merits for first time in family case

The appeal in Re H (Children) [2015] EWCA Civ 583 raised, in the words of Lord Justice McFarlane, 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?"  

This was said to be the first occasion the point had arisen at Court of Appeal level in a family case.

The case had a complicated procedural history which is set out in the judgment. By the time it reached the Circuit Judge considering relief from sanctions the appellant had not only been out of time on filing his notice of appeal by some 20 days but, in requesting an oral hearing for which FPR 30.3(6) prescribes the period of 7 days for the filing of request, the judge in fact noted that:

"[T]here was "absolutely no evidence" before him as to why the father had taken no action during the period of 8 months which followed the refusal of permission of appeal on paper."

In the event the child subject to the appeal had been placed with adopters and it was the appellant's application for leave to oppose the adoption application (and its refusal in the first instance) that had prompted the renewed effort to appeal the original orders.

McFarlane LJ, delievering the judgment of the Court of Appeal, found, critically:

"44. I consider that [the judge] fell into error in two respects. He underestimated the underlying merits of the father's appeal, considering that the new grounds of appeal were merely arguable when, as I have indicated, they were in truth unanswerable. That flawed analysis caused him to attribute no real weight to the underlying merits in his relief from sanction analysis. That this is so is demonstrated by a key sentence within paragraph 27 of the judge's judgment where he says 'It would be different perhaps if it was completely unarguable to oppose it, but that is not the case here.'"

The appeal was allowed, the final care order and placement for adoption orders set aside, replaced with an interim care order, and ancillary directions made which were designed to retain the validity of the adopter's adoption application, maintain the final hearing 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.

For an article analysing the judgment and considering its implications, see Relief from Sanctions in the Family Courts by Chris Barnes, of 4 Paper Buildings, and Jane Wells and James Billingham, of Harney and Wells Solicitors, who acted for the appellant father. The judgment is here.

14/6/15