Egbaiyelo v Egbaiyelo

In family proceedings, an appeal from a district judge’s order to a county court judge or High Court judge remains an appeal as of right unless the governing family-proceedings rules provide otherwise. The general permission filter in Civil Procedure Rules 1998, Part 52, does not displace the separate regime preserved by the Family Proceedings Rules 1991. A judge who treats such an appeal as an application for permission to appeal adopts the wrong procedure. Where the lower judge has given no adequate reasons and related applications have not been properly investigated, the appropriate course is to allow the appeal and remit the matters for rehearing.

The parties, formerly married and parents of three children, had engaged in extensive family litigation concerning their former matrimonial home, ancillary relief, occupation and residence. Judge Coningsby QC, sitting in the Croydon County Court, dismissed or refused permission in relation to applications concerning the children and the former matrimonial home. The father appealed.

The Court of Appeal considered whether the lower court had been entitled to treat appeals from district judges in family proceedings as applications requiring permission. It also considered the consequences of inadequate reasons, incomplete information concerning the children’s address, and the relationship between the earlier ancillary-relief order and the property applications.

Appeals allowed and matters remitted for rehearing.

1. Family proceedings are governed by a distinct appeal regime. Under section 54 of the Access to Justice Act 1999, CPR 2.1 and CPR 52.3, and rules 8.1, 8.1A and 1.3 of the Family Proceedings Rules 1991, an appeal from a district judge’s order in family proceedings may be brought as of right. Permission is not required.
2. Judge Coningsby erred in treating the father’s applications as applications for permission to appeal. His decision could not stand, particularly because he gave no reasons for dismissing the residence application.
3. The residence application was arguable if the father could obtain a home where the children could stay. The earlier order concerning disclosure of the children’s whereabouts was revoked because it had been made on incomplete information, and the issue was directed to be reconsidered.
4. The father’s challenge concerning the former matrimonial home had to begin with the ancillary-relief order of District Judge Fink, which dismissed his property-transfer claims. Unless that order was set aside, the court had no jurisdiction to interfere with the property interest. Barder v Barder [1988] AC 20 might apply.
5. The appeals against Judge Coningsby’s order were allowed and the matter remitted for rehearing. Remission did not indicate that the father would ultimately succeed.

• Court of Appeal (Civil Division): appeals against Judge Coningsby QC’s order allowed and the matter remitted for rehearing.
• Croydon County Court: Judge Coningsby QC dismissed the father’s applications concerning disclosure of the children’s addresses and residence, and treated related challenges as applications for permission to appeal.
• Earlier decisions: District Judge Fink made an ancillary-relief order on 3 August 2000, and District Judge Parker made a related order on 10 May 2001. Their citations were not stated in the judgment.