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AV v RM [2012] EWHC 1173 (Fam)

Application for permission to appeal in which Moor J considered the correct test to be applied to such applications

In private law proceedings concerning residence and contact, the District Judge at first instance had ordered that the children primarily reside with their father under a shared residence order. The mother applied for permission to appeal , arguing that the order was plainly wrong, that there had been an impression of bias created by the District Judge visiting the mother's home during the hearing and that the order was contrary to the recommendation of Cafcass. The application for permission to appeal was transferred from the County Court to the High Court.

Moor J considered the circumstances in which the Court should allow permission to appeal. He referred Family Procedure Rules 2010 r30(7), which provides that "Permission to appeal should only be given where –"(a) the court considers that the appeal would have a real prospect of success; or (b) there is some other compelling reason why the appeal should be heard."

He commented with disapproval on the decision in NLW v ARC [2012] EWHC 55 where Mostyn J had held at paragraph 8 that an application for permission to appeal should only be allowed where the appeal is more likely than not to succeed at the substantive hearing. Moor J held that, instead, the appropriate test was that set out by the Court of Appeal in Tanfern Limited v Cameron MacDonald i.e. that "the prospect of success must be realistic rather than fanciful" (per Brooke LJ at paragraph 21) and that no further 'gloss' should be placed on it than that.

Moor J also declared a need for a Practice Direction as to how the High Court should deal procedurally with an application for permission to appeal, noting that at the moment the system is not uniform.

Summary by Thomas Dudley,  barrister, 1 Garden Court Family Law Chambers


IN THE HIGH COURT OF JUSTICE                                                                 
[2012] EWHC 1173 (Fam)

Royal Courts of Justice
Wednesday, 21st March 2012


(In Private)
B E T W E E N :

AV Applicant

-  and  - 

RM Respondent

Transcribed by BEVERLEY F. NUNNERY & CO
Official Shorthand Writers and Tape Transcribers
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MR. R. HARRISON (instructed by Alexiou Fisher Philipps) appeared on behalf of the Applicant.

MS. J. ECOB (instructed by M & M Solicitors) appeared on behalf of the Respondent.



1. This is an application by a mother for permission to appeal from an order made by District Judge Backhouse in the Woolwich County Court on 9th February 2012.

2. I will very briefly set out the facts.  The mother lives in South East London.  There is a dispute as to whether she is primarily based in a flat on her own or in a property with her parents.  Indeed, the district judge made a finding of fact in relation to that.  The father lives in Leicester.  He is a professional man.  The parties married in July 2005 and lived in the property in Leicester, which was shared with the father's mother.  There are two children:  E (a boy) who is aged 3 and P (a girl) who is aged 2.  Unfortunately, the parties' marriage broke down in April 2009.  At that point the mother was pregnant with P.  She moved with E to South East London.  It is clear that there have been significant proceedings before District Judge Backhouse ever since.  Initially, contact was at a contact centre.  Then it developed to visiting contact and then to staying contact.                         

On 14th September 2010, a shared residence order was made.  Four nights out of fourteen, including alternate weekends were to be spent with the father together with each half-term and half of the school holidays.

3. On 4th October 2011, a CAFCASS report was obtained from a Ms. Greensmith.  Her recommendation was that the children should live with the mother.  She said that the mother was the primary carer.  She said the children's attachments to the mother were very close, although they did indeed have a close and affectionate attachment to their father.  She did not believe the court would want to change the position unless there was good reason to do so.  She did not consider that the advantages of a move to Leicester could be said to outweigh the disadvantages.  The mother's parenting was better than good enough and it was not appropriate to make decisions about education at their current ages.

4. The matter proceeded before District Judge Backhouse.  The hearing commenced on 15th November 2011.  It continued on 16th January 2012.  Judgment was delivered on 9th February.  District Judge Backhouse continued the shared residence order but provided that the children should move to be with their father primarily and attend a private school in Leicester, residing with the mother on alternate weekends, reducing from three nights to two nights when they were at school for longer.  It is clear from the judgment that the district judge made a number of findings of fact in relation to dishonesty on the mother's behalf.  This concerned where she was living and which nursery the children had been attending.

5. The mother's notice of appeal and application for a stay was received by the court on 29th February.  The mother says the decision was plainly wrong, that there was no good reason for this material change of residence and it was contrary to the recommendations of CAFCASS.  She says that it was unfair that the district judge visited the mother's home, which gave the appearance of bias, on the first day of the trial.

6. Directions have been made both by Her Honour Judge Atkinson in the Bromley County Court on 12th March and by Pauffley J. on 13th March.  Mrs. Justice Pauffley transferred the appeal to the High Court and directed that the application for permission to appeal and the stay be heard today by me.  It follows that, having done so, I will have to discharge Her Honour Judge Atkinson's order.

7. A point arose initially as to the exact law in relation to this application, and I should just deal with that first.  Appeals are now governed by the Family Proceedings Rules 2010, pursuant to rule 30.3(7):

"(7) Permission to appeal should only be given where –

"(a) the court considers that the appeal would have a real prospect of success; or

"(b) there is some other compelling reason why the appeal should be heard."

8. My attention was drawn to the decision of Mostyn J., NLW v ARC [2012] EWHC 55, on 13th January 2012, in which he says:

"8 In his skeleton argument Mr. Chamberlayne has suggested that the object of the test is only to weed out the hopeless appeal.  I would not go that far.  I would suggest that the concept of a real prospect of success must mean, generally speaking, that it is incumbent on an appellant to demonstrate that it is more likely than not that the appeal will be allowed at the substantive hearing.  Anything less than a fifty-fifty threshold would of course, by linguistic definition, mean that it is improbable that the appeal will be allowed and in such circumstances it would be hard to say that any appeal had a real prospect of success; rather, it could only be said as a matter of logic that it had a real prospect of failure."

9. It has been on said on many occasions that judges should not place a judicial gloss on the words of either the statute or the rules.  With the greatest of respect to Mostyn J., it may well have been that this aspect was not argued fully before him and that his attention was not, in particular, drawn to a decision of the Court of Appeal, Tanfern Limited v Cameron MacDonald [2000] 1 WLR 1311, in which Brooke LJ. said the following (at para.21):

"21. Permission to appeal will only be given where the court considers that an appeal would have a real prospect of success or that there is some other compelling reason why the appeal should be heard (CPR 52.3(6)).  Lord Woolf MR has explained that the use of the word of 'real' means that the prospect of success must be realistic rather than fanciful [see Swain v Hillman The Times, 4th November 1999; Court of Appeal (Civil Division) Transcript No. 1732 of 1999]."

10. The test for permission to appeal is, of course, exactly the same in the Court of Appeal.  It, therefore, follows that this court is bound by Tanfern Limited v Cameron-MacDonald and I consider that there should be no gloss placed on the words of the rules other than to say that "real" means that the prospect of success must be realistic rather than fanciful.

11.   I have considered in detail all the submissions that have been made to me by Mr. Harrison.  I have also in fact heard from Ms. Ecob for the father.  In my view, there needs to be a Practice Direction as to how the High Court should deal with an application for permission to appeal because at the moment the system is not uniform.  There is a decision of Baron J. which suggests that such applications should be dealt with first on paper with the possibility of a renewed oral hearing.  There is the decision of Mostyn J. that I have just referred to.  My experience is that these cases tend to be listed for an oral hearing initially, sometimes with both parties present, sometimes only with the appellant present.  Nevertheless, I decided to hear from Ms. Ecob.

12. It has been agreed between counsel that, if I decide to grant permission to appeal, I should endeavour to have this case heard as quickly as possible.  The children will, on the basis of the district judge's order, be moving to a new nursery school in Leicester on 23rd April.  It may well be that it can be heard before 23rd April and it is possible that I might be able to hear it.  If it can be heard before 23rd April, it seems to me that the question of a stay is irrelevant.  If, on the other hand, it cannot, I think that counsel realistically accept that, if permission to appeal is granted, a stay should follow as it would be wrong to pre-empt the decision on the appeal by carrying into effect the move to Leicester, which is the thing that the appellant is complaining about.

13. I have also canvassed with counsel the extent to which I should give reasons if I decide that permission to appeal should be granted.  I entirely accept that if I was to decide that it should not I should give reasons for that.  I think that, at this stage, I am simply going to say what my decision is.  We will then adjourn briefly to see when it is possible to hear the appeal because I have come to the clear conclusion that this is a suitable case for me to give permission to appeal.  I am satisfied that, applying the test in Tanfern Limited v Cameron-MacDonald, there is a real prospect of success on this appeal.  It therefore follows that I should give permission.  That is all that I intend to say at this stage.