T (Children)

On an application for a stay pending permission to appeal in a family case, the court must identify a real arguable case with some prospect of success. Appellate intervention in the exercise of a family judge’s discretion is highly restricted. It is justified where the judge approached the case incorrectly or reached a decision that was plainly wrong. The welfare of the children remains the first and paramount consideration under Children Act section 1, including the statutory checklist. A careful welfare determination supported by cogent evidence should not be suspended merely because the proposed change of residence may later be reversed.

The father applied in person for a renewed stay of execution of an order made by Johnson J. Following a five-day welfare hearing, the judge had ordered that two children should move from their father in East Anglia to live with their mother. The order followed earlier Hague Convention proceedings and extensive evidence, including evidence from the Official Solicitor and a child consultant psychiatrist.

The father argued that the children were not in danger, that the mother’s arrangements were unsuitable, and that the trial procedures and expert evidence were flawed. The central issue was whether there were sufficient prospects of success on a proposed appeal to justify delaying the order.

1. Application refused. The renewed application for a stay was refused.
2. For a stay pending appeal, the court had to be satisfied that there was a real arguable case and some prospect of success. The applicant need not be certain to succeed, but the proposed appeal had to present a point on which the Court of Appeal could realistically conclude that the judge might have made the wrong order.
3. The judge below had applied the welfare principle under Children Act section 1 and had considered the section 1(3) checklist. He had heard the parents at length, considered the extensive history, and had the benefit of evidence from the Official Solicitor and Dr Lucy. His decision was supported by cogent evidence.
4. The restraint applicable to appellate review of a family judge’s discretion, identified by reference to G v G (1983) 4 FLR 327, meant that intervention would be extremely difficult unless the judge had approached the case in a wrong way or reached a decision that was plainly wrong.
5. The complaints concerning procedure, expert evidence, the Official Solicitor’s evidence, the absence of a second expert report, and the time available to digest the evidence had been matters for the trial judge. They did not establish real prospects that the order would be set aside. Although unnecessary movement of children was a serious concern, it did not justify a stay where the prospects of a successful appeal were very small.

• Court of Appeal (Civil Division): The father’s renewed application for a stay of execution of Johnson J’s order was refused.