AV v RM

Permission to appeal under rule 30.3(7) of the Family Proceedings Rules 2010 should be granted where the appeal has a real prospect of success or there is another compelling reason for it to be heard. The word real means that the prospect must be realistic rather than fanciful. The court should not add a requirement that the appeal is more likely than not to succeed. Where permission is granted and implementation of the order would pre-empt the appeal, a stay may be appropriate pending an expedited hearing.

The applicant mother sought permission to appeal from a District Judge’s order continuing a shared residence arrangement but providing that the children should live primarily with their father in Leicester and attend school there. She challenged the findings of fact, the change in residence, the departure from the CAFCASS recommendation and the fairness of the proceedings. She also sought a stay pending appeal. The central issue was whether the proposed appeal satisfied the permission threshold under rule 30.3(7) of the Family Proceedings Rules 2010.

1. Permission to appeal granted. The court held that rule 30.3(7) permits an appeal where there is a real prospect of success or some other compelling reason why it should be heard.
2. The court declined to impose a judicial gloss requiring an appellant to show that success was more likely than not. Following Tanfern Limited v Cameron-MacDonald [2000] 1 WLR 1311, the proper clarification is only that real means realistic rather than fanciful. The court regarded itself as bound by that Court of Appeal authority.
3. The approach in NLW v ARC [2012] EWHC 55, insofar as it suggested a generally applicable more-likely-than-not threshold, was not followed.
4. The proposed appeal concerned, among other matters, findings about the mother’s honesty, the decision to move the children to Leicester, the weight given to the CAFCASS recommendation and an alleged appearance of bias. The judge concluded that the appeal had a real prospect of success.
5. The question of a stay was adjourned briefly to establish when the appeal could be heard. If the appeal could be heard before the planned move to Leicester, a stay would be unnecessary. If not, a stay should follow because implementing the move would pre-empt the appeal.

The application arose from an order made by District Judge Backhouse in the Woolwich County Court on 9 February 2012. Directions were subsequently made in the Bromley County Court and the matter was transferred to the High Court for determination of permission to appeal and the stay application.