Re H: Relief from sanctions and appeals out of time
The recent case of Re H (Children) [2015] EWCA Civ 583 highlighted some of the difficulties that can be encountered by parties acting in person in family proceedings, and the stark consequences that can flow from a simple failure to follow procedural rules. The decision gives some guidance on the circumstances to be considered when deciding an application for relief from sanctions, namely an application for permission to appeal out of time.
The original proceedings involved the Local Authority applying for care orders in respect of four children. Ultimately, three of the children were made subject to supervision orders, remaining in the care of their Father. The district judge at first instance then went on to make the youngest child subject to a care and placement order, with a plan of adoption. By the time the case reached the Court of Appeal, all parties (including the Local Authority) were in agreement that the judge did not give sufficient reasons for his decision to place the youngest child for adoption (as required by the case of Re B-S [2013] EWCA Civ 1146) and conceded that the judgment would not stand up to scrutiny on appeal.
The Father wished to challenge the judge’s decision in respect of the youngest child. The difficulty for the Father arose (after – it seems – having been wrongly advised by his counsel that there were no grounds of appeal) when he lodged his own notice of appeal 20 days later than the 21 day time limit permitted by Family Procedure Rule 30.4. The notice was considered by the circuit judge and refused, with short written reasons issued. The circuit judge indicated that the Father could renew his application at an oral hearing, if he wished. The Father, having been advised by his counsel that there were no grounds of appeal and having read the judge’s reasons for refusing him permission to appeal, then considered that there was no merit in making a further oral application and declined to do so.
The child was placed with prospective adopters shortly thereafter. Some months later, an application was made for an adoption order. The Father obtained fresh legal advice through solicitors and counsel, who promptly made an application for permission to oppose the adoption order. This was refused by the district judge, but allowed on appeal to the circuit judge. At the same time as this appeal, the Father’s original appeal against the making of the care and placement orders was redrafted and reinstated by his new legal team. This fresh application was refused by the circuit judge, and that decision was subsequently appealed to the Court of Appeal.
It was conceded by all parties that, given the deficits in the judge’s original reasoning at first instance, if permission to appeal were to be granted by the Court of Appeal, then the appeal itself would be allowed. The question was: should the Court of Appeal allow the Father permission to appeal the original decision, now eight months on? The issue the Court of Appeal had to grapple with was what weight – in the light of recent decisions in both the civil and family jurisdictions which have reiterated and promoted the importance of proper compliance with procedural rules to ensure efficient administration of justice – should be given to consideration of the relative merits of the proposed appeal, when deciding whether to allow relief from sanctions.
Ultimately, the Court of Appeal granted the Father permission to appeal, allowed the appeal, and remitted the case for a re-hearing. This was because the proposed appeal was clearly very strong on the face of it, and would not require much further investigation. The judge had erred in suggesting that the appeal was “arguable” but “not unanswerable”.
The Court of Appeal recognized that this has had very significant consequences for all parties, not least the proposed adopters, who were represented at the hearing as interested parties. They had accepted the child without any indication that there would be a likely challenge from the birth family. The child had now been living with them for several months, however, its future – and the question of whether it could return to live with the Father – once again needed to be decided.
The Court of Appeal recognized the stark consequences that can befall any party or child in family proceedings when there is delay, but declined on this occasion to distinguish family cases from any other civil jurisdiction. That question appears to have been left open:
“As I indicated at the start of this judgment it is not my purpose to suggest that the approach in family cases should differ from that applied in the ordinary civil jurisdiction. It is a point that could be left open for another day in a case where the merits are less strikingly clear as they are in the present case, yet the consequences of the order, namely implementation of an adoption plan, remain at the highest level of intervention and therefore consequence for the proposed appellant and his or her children.” (McFarlane LJ)
It was suggested by the Court of Appeal that all judges at first instance make clear to parties that any appeal should be launched within 21 days, and the fact that this advice had been given ought to be recorded on the face of any final order. Judges dealing with any application for permission to appeal out of time should do so with the utmost efficiency.
More and more often, parties are representing themselves in the Family Court. Sometimes, people have had no access to legal advice at all. The Family Court often deals with cases which involve very complex areas of law and procedure and it can be very difficult for litigants in person to properly manage and present their case in the best possible way. Sometimes, a very simple failure to follow the rules – often cause by misunderstanding – can have absolutely devastating consequences. It is always prudent to seek some form of legal advice if at all possible.