Appeals out of time in children law mattersKerrie Broughton
Kerrie Broughton discusses two relatively recent cases which have addressed the issue of appeals lodged out of time in public law children matters and in particular, the issue of sanctions for failing to comply with the relevant time limit of lodging an appeal within twenty one days.
Re F(A Child)
One of these cases, Re F (A Child)  EWCA Civ 789,  1 FCR 88, concerned an appeal out of time against a determination on the issue of habitual residence and jurisdiction. In that matter I was led by Henry Setright QC for the local authority and Charles Prest, also from Park Square Barristers, acted for the child. The factual background to this matter was unusually complicated and subsequently led to an interesting hearing on the issue of habitual residence ( EWFC 26 and available on BAILII).
Re F concerned the appeal of the father against a decision that the child was habitually resident within England and Wales and that the courts here therefore had jurisdiction in care proceedings. That decision had been made in the absence of the father (who had for some time had no involvement with either the proceedings or the local authority) but also without him having been given any notice that the issue of jurisdiction was going to be determined at that particular hearing. Further, despite his absence, it was known by all parties that the father had consistently challenged the local jurisdiction and considered the child to be habitually resident in the United States and that jurisdiction lay there.
All parties accepted that in the circumstances the appeal should succeed but it can be seen that the principal focus of the Court of Appeal was the merits of the appeal rather than any formal consideration of the relief from sanctions provision (rules 3.8 and 3.9 of the CPR 1998, which apply to an appeal to the Court of Appeal – it would be rule 4.5 and 4.6 of the FPR 2010 for an appeal to a circuit judge under the FPR). The broader context to this is that the President and other Family Division judges have increasingly emphasised that “non compliance with orders should be expected to have and will usually have a consequence”: Re W (A Child): Re H (Children)  EWCA Civ 1177,  1 FLR 1266 at .
The father’s appeal was duly allowed, Munby P noting:
“15. If the matter had related to anything other than jurisdiction, the father might well have been shut out from being given permission to appeal so long after the event. But the delay, however damaging to F, cannot be allowed to stand in the way. As we announced at the conclusion of the hearing, we accordingly extend the father’s time for appealing, give him permission to appeal and allow the appeal.”
More recently, similar issues have arisen in the matter of Re H (Children)  EWCA Civ 583. In that matter, the father sought to appeal against a placement order with regard to one child in circumstances in which three older children remained in his care subject to supervision orders. The father’s application was lodged significantly out of time – indeed only when the adopters filed their adoption application.
Again in this matter the Local Authority took the unusual (but, in the view of the Court, appropriate) stance of not opposing either the application for leave to appeal or the substantive appeal. McFarlane LJ’s position was:
‘”When considering an application to extend the time for appealing in a family case in relation to children, what regard, if any, should be had by the judge to the overall merits of the proposed appeal?”
In this particular case the Court of Appeal took the view that the merits of the appeal were ‘”unanswerable” rather than merely “arguable” and suggested that:
- Judges should spell out to parties the need to file a notice of appeal within 21 days and that that information should be recorded on face of the final order.
- Courts should strive to deal with any application to appeal with ‘utmost efficiency’.
- The fact that the application for permission to appeal out of time concerned a child in public care was a very significant matter when deciding to grant ‘relief from sanctions’ or an extension of time for appealing.
What would happen in cases where the merits of the appeal were less ‘strikingly clear’ and the consequences were at the highest level of state intervention? McFarlane LJ indicated that he was “currently unpersuaded that there is any ground for distinguishing family law, in this respect, from the ordinary run of cases” but whether that is an issue that has to be considered in the future remains to be seen.
Kerrie Broughton is an experienced family barrister with over 20 years’ experience in children law matters. To book her, please contact her clerks Claudine or Carrie on 01132 459763.