J-S (Children)

An academic appeal should be entertained only exceptionally. It must raise a point of general importance, cause no inappropriate prejudice to the respondent, and permit full and proper argument on both sides.

Interim care decisions based on an evaluation of risk and protective measures attract substantial appellate restraint, particularly where an imminent fact-finding hearing will determine the central dispute. Electronic tagging is an unusual and case-specific safeguard. General guidance should not be formulated without a suitable factual context and participation by materially affected bodies.

Although a first instance family judge may grant permission to appeal, caution is required, especially under the compelling-reason limb and where the proposed appeal may be academic.

Five children were removed from their mother and made subject to interim care orders after evidence suggested that the youngest child’s father, who had previously caused serious injuries to another child, had been staying at the family home contrary to written agreements. The parents disputed that allegation but accepted that the interim threshold was crossed. They offered electronic tagging as a means of monitoring their separation.

Her Honour Judge Owens continued the interim care orders. She found that tagging would not sufficiently mitigate the very high risk of harm and directed an imminent fact-finding hearing. The father sought permission to challenge the proportionality of the orders and appealed, with the judge’s permission, on whether guidance should be given about tagging in an ordinary care case not involving abduction.

The central questions were whether the risk assessment was arguably wrong and whether the Court of Appeal should determine the tagging issue despite its having become academic.

1. Permission to appeal on the first ground was refused. The judge had approached the interim-care question correctly. She was entitled to find a significant likelihood of future unsupervised contact and to conclude that tagging would not adequately mitigate the very high risk of harm. Her findings had ample evidential support at the interim stage. An appellate court will rarely interfere with an interim order, particularly where an imminent fact-finding hearing will resolve the central dispute.

2. The appeal on the second ground was dismissed. Under Hutcheson v Popdog Ltd (Practice Note) [2012] 1 WLR 782, an academic appeal may be entertained only exceptionally and where three conditions are met: the point is of general importance; the respondent consents, is fully protected on costs, or suffers no inappropriate prejudice; and both sides can be fully and properly argued.

   None of those conditions was satisfied. There was no demonstrated pressing demand for further guidance on tagging. Re X & Y (No 1) [2015] 2 FLR 1487 showed that tagging questions arise infrequently. Such cases are unusual and fact-specific. The local authority and guardian opposed determination of the academic issue, and no realistic costs protection was available. Proper argument would also have required participation by the Ministry of Justice, the Legal Aid Agency and possibly other organisations, producing disproportionate expense and delay.

3. The court therefore declined to issue guidance on electronic tagging. The children’s welfare should instead be advanced through the pending proceedings and other conventional means.

4. Guidance on permission to appeal. The applicable procedural rules permit an application to the lower court and allow permission where an appeal has a real prospect of success or there is another compelling reason to hear it. Applying Re T [2003] 1 FLR 531, an initial application to the lower court remains good practice. Nevertheless, first instance family judges should exercise particular caution before granting permission, especially under the compelling-reason limb or where the appeal may be academic. Permission may properly be granted where conflicting authorities require a choice, the appellate court would probably grant permission, or an immediate decision has clear advantages. In most cases the decision should be left to the appellate court to avoid false expectations and unnecessary costs.

Peter Jackson LJ delivered the judgment. Baker LJ agreed.

1. Court of Appeal (Civil Division): Refused permission to appeal against the continuation of the interim care orders and dismissed the appeal concerning electronic tagging. The court declined to give general guidance.
2. Oxford Combined Court Centre: Her Honour Judge Owens continued the interim care orders, finding that electronic tagging would not sufficiently protect the children. She refused permission on the proportionality ground but granted permission on the tagging ground.