H (Children), Re

When determining whether to extend time for appealing in proceedings concerning children, the court may consider the proposed appeal’s merits as part of all the circumstances. The merits will usually carry little weight and should not generate a detailed preliminary trial. They become significant where the appeal is demonstrably very strong or very weak without substantial investigation.

Time limits have enhanced importance in public law children cases because delay may prejudice the child and disrupt an authorised adoption process. An extension granted after prolonged and intentional default will therefore be exceptional. Nevertheless, plainly insupportable welfare reasoning may outweigh substantial delay and resulting changes in the child’s circumstances, particularly where the child’s welfare is already due to be reconsidered at a full hearing.

A district judge made a final care order and a placement order for the youngest of four siblings, although he left the three older children in their father’s care. The father filed an appeal 20 days late and did not seek timely oral reconsideration after permission was refused on paper. Eight months later, HHJ Farquhar refused relief from sanctions and permission to appeal, emphasising the unexplained and intentional delay and the child’s placement with prospective adopters.

The father appealed that refusal. The local authority accepted that the district judge’s three-sentence welfare analysis was patently deficient and that the substantive appeal would succeed if permitted to proceed. The central issue was what regard a court deciding whether to extend time should have to the overall merits of the proposed appeal.

1. Appeal allowed. The refusal of relief from sanctions could not stand. The final care order and placement order were set aside and replaced by an interim care order. Ancillary directions preserved the adoption application and the forthcoming final hearing.

2. An application to extend the time for an appeal under Part 30 of the Family Procedure Rules 2010 engages the court’s case-management power and the relief-from-sanctions provisions. The court must consider all the circumstances specified by rule 4.6. Those circumstances may include the merits of the proposed appeal, although the merits are not an expressly listed factor.

3. The approach in R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633 applies. An extension application should not ordinarily become an investigation of the substantive appeal. The merits have a significant role only where the court can determine without substantial investigation that the proposed grounds are very strong or very weak.

4. Appeal deadlines have enhanced importance in public law children cases. Delay is likely to prejudice a child’s welfare and may disrupt action lawfully taken under a care or placement order. A late application is therefore a very significant matter in the relief analysis. Judges making final care and placement orders should tell the parties about the 21-day appeal period, and appellate courts should process such applications with the utmost efficiency.

5. The district judge’s welfare analysis was insupportable. It did not explain why separating the youngest child from a father found to provide very good care to her siblings, and placing her for adoption, was necessary and proportionate. The proposed substantive appeal was therefore unanswerable rather than merely arguable.

6. HHJ Farquhar erred by underestimating those merits and consequently giving them no real weight. Although the prolonged default and the child’s established placement with prospective adopters were powerful considerations, they were outweighed by the plainly deficient welfare determination and the fact that the child’s welfare was already to receive a full, current re-evaluation by a High Court judge. Gloster LJ and Sir Robin Jacob agreed with McFarlane LJ.

1. Court of Appeal (Civil Division): Allowed the father’s appeal in H (Children), Re [2015] EWCA Civ 583. The court set aside the final care and placement orders, substituted an interim care order and preserved the existing adoption proceedings.

2. Brighton County Court, circuit judge: HHJ Farquhar refused relief from sanctions and permission to appeal the original care and placement orders. He separately allowed an appeal concerning leave to oppose adoption, following which the father obtained leave under section 47 of the Adoption and Children Act 2002.

3. Brighton County Court, district judge: District Judge Gamba made a final care order and a placement order concerning the youngest child. He later refused the father leave to oppose the adoption.