NB v London Borough of Haringey

Yesterday, at 5.30 p.m., the North London Family Proceedings Court made an interim care order in respect of JG, who I think is nearly 3 years old. The application before me today is for a stay pending an appeal of that decision, which appeal would likely be heard on 28^th October 2011 by the Circuit Judge in the Barnet County Court.

Given the nature of the application and of the decision I have to make, it is important that I do not say more than is strictly necessary to decide the application and do not say anything which might influence the outcome of the appeal one way or the other.

The application was made against a backdrop of considerable chaos in the life of this child. His mother is an admitted drug user who claims to have foresworn the use of drugs until comparatively recently, six weeks ago. She is a person who has not complied with agreements and directions for testing for drugs notwithstanding the plainest warning to her on the face of an interim order of the court that were she not to do so the inevitable inferences would be drawn; and she is a person who maintains a close relationship with her partner who is in prison convicted of serious domestic violence upon her.

The position of the mother before the justices was that the interim threshold was not passed. In contrast, the position of the guardian was that the interim threshold was indeed passed but that an interim supervision order rather than an interim care order should be made. The position of the local authority was that the interim threshold was passed and an interim care order should be made. The result of the case was that an interim care order was made. The magistrates produced their reasons in an extremely abbreviated period of time. Inevitably, analysis of those reasons reveals that they may have been better put but the pressure of time meant that defects were almost inevitable.

A complaint is that section 5 of the written decision relies only on the risk of domestic violence at the hands of a man who is in prison and will remain in prison until the matter is next considered by the justices, and does not make any explicit reference to the other matters, although in their account of the history it is clear that those other matters were at the forefront of their mind, which is hardly surprising given that the mother herself had given oral evidence before them.

The appeal is governed by Part 30 of the Family Procedural Rules 2010 and Rule 30.8 states that an appeal notice does not operate as a stay of any order or decision of the lower court unless the lower court or appeal court orders otherwise. There are numerous authorities bearing on whether a stay should be granted although, rather surprisingly, there is none so far as I am aware on whether those tests are modified in a case involving a child, whether in private law proceedings or public law proceedings. Plainly, the test which I will adumbrate in a moment has to be seen through the welfare prism that overarches all family proceedings. That said, the principles cannot, in my judgment, be materially different whatever the nature of the dispute in hand.

The leading authorities are Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065, Leicester Circuits Ltd v Coates Bros plc [2002] EWCA Civ 474, Contract Facilities Ltd v The Estates of Rees (decd) [2003] EWCA Civ 465, the old Court of Appeal case of Wilson v Church (No. 2) [1879] 12 Ch Div, 454, an unreported decision of the Court of Appeal, Winchester Cigarette Machinery Ltd v Payne (No. 2), 15^th December 1993, and a helpful decision which seeks to draw all the authorities together given by the Chief Judge of the High Court of Hong Kong, Ma J, Wenden Engineering Services Co Ltd v Lee Shing UEY Construction Co Ltd, HCCT No. 90 of 1999. In that latter case the Chief Judge stated:

“7.

The existence of merely an arguable appeal cannot by itself amount to a sufficient reason to justify a stay. It can be put this way, the existence of an arguable appeal, that is one with reasonable prospects of success, is the minimum requirement before a court would even consider granting a stay. In other words, however exceptional the circumstances may be otherwise justifying a stay of execution, if the court is not convinced that there exists arguable grounds of appeal no stay will be granted. Conversely, however, the existence of a strong appeal or a strong likelihood that the appeal will succeed, will usually by itself enable a stay to be granted because this would constitute a good reason for a stay. (See Winchester Cigarette Machinery Ltd)

8.

In most cases the court will not be dealing with the extreme situations I have referred to. Often, it will be faced with simply the existence of an arguable appeal. Here, it becomes necessary for the appellant to provide additional reasons as to why a stay is justified. The demonstration of an appeal being rendered nugatory is one example albeit a common one. Here, where it is demonstrated that an appeal would be rendered nugatory if a stay was not granted the court may require no more than the existence of an arguable appeal. Correspondingly, where it cannot be shown that an appeal would be rendered nugatory if a stay were not granted, the court will require in the absence of any other factors the applicant to demonstrate strong grounds of appeal or a strong likelihood of success.

From these authorities I derive the following five principles in relation to the application before me. First, the court must take into account all the circumstances of the case. Second, a stay is the exception rather than the general rule. Third, the party seeking a stay should provide cogent evidence that the appeal will be stifled or rendered nugatory unless a stay is granted. Fourth, in exercising its discretion the court applies what is in effect a balance of harm test in which the likely prejudice to the successful party must be carefully considered. Fifth, the court should take into account the prospects of the appeal succeeding. Only where strong grounds of appeal or a strong likelihood of success is shown should a stay be considered.”

In this case, given the proximity of the appeal hearing and given the nature of the dispute, namely, the effective residence of the child for the next three weeks and one day, there is no question that the appeal will be stifled were a stay not to be granted. It therefore follows, in my view, that in order for a stay to be awarded it has to be demonstrated today that there are strong grounds of appeal or a strong likelihood of success. I find it impossible on the material before me to reach that conclusion. Indeed, in circumstances where it was accepted by the guardian, and indeed positively asserted by the local authority, that the interim threshold had been passed, it likely becomes a simple question of analysing whether the exercise of discretion made by the justices to award an interim care order rather than an interim supervision order has miscarried or it is otherwise demonstrated to be plainly wrong. On the material before me I cannot say that that is the case, although I am not, I emphasise, deciding the appeal. What I am deciding is that I am not satisfied on the material before me that there are strong grounds of appeal or a strong likelihood of success and the application is therefore refused.