NB v London Borough of Haringey

An appeal does not operate as a stay of the order appealed against. A stay is exceptional and requires consideration of all the circumstances, the likely prejudice to the successful party, whether the appeal would otherwise be stifled or rendered nugatory, and the prospects of success. Where the appeal will not be rendered nugatory, an arguable appeal is insufficient. Strong grounds of appeal or a strong likelihood of success is required. In proceedings concerning a child, those principles must be applied through the welfare prism, but the underlying test is not materially different.

The applicant sought a stay of an interim care order made by the North London Family Proceedings Court concerning a child. The appeal was expected to be heard shortly by a Circuit Judge in the Barnet County Court. The applicant contended that the interim threshold had not been crossed. The guardian supported an interim supervision order, while the local authority supported the interim care order.

The issue was whether the order should be stayed pending appeal, having regard to the short period before the appeal and the child’s welfare.

1. Application refused. The interim care order remained operative pending the proposed appeal.
2. Under rule 30.8 of the Family Procedural Rules 2010, an appeal notice does not itself stay the lower court’s order. The court retains a discretion to grant a stay.
3. The governing principles require the court to consider all the circumstances; treat a stay as exceptional; require cogent evidence that the appeal would be stifled or rendered nugatory without a stay; assess the likely prejudice to the successful party by an effective balance of harm; and consider the prospects of success. An arguable appeal is the minimum threshold for consideration. Where the appeal would otherwise be rendered nugatory, that may suffice with an arguable appeal. Where it would not, strong grounds of appeal or a strong likelihood of success are required.
4. The welfare of the child provides the overarching context in family proceedings, but does not materially alter those principles.
5. Here, the appeal would not be stifled if a stay were refused. Given the accepted interim threshold and the nature of the challenge, the applicant had to show strong grounds of appeal or a strong likelihood of success. The court could not reach that conclusion on the material available. It was not deciding the appeal itself, but only the stay application.

The judgment does not state any earlier appellate decision. The application was made pending an anticipated appeal to a Circuit Judge in the Barnet County Court against the interim care order made by the North London Family Proceedings Court.