SH (A Child)

Permission to appeal requires a real prospect of success or another compelling reason. An appellate court must not substitute its own evaluation for that of the trial judge. Intervention is justified only for an error of law, an evidentially unavailable conclusion, a materially flawed evaluation, procedural unfairness, or an impermissible exercise of discretion.

An out-of-time appeal is approached as an application for relief from sanctions. The court considers the applicable procedural factors, the default, its explanation, the merits, all the circumstances, and the effect of prolonging litigation on the child.

The mother appealed, out of time, against a child arrangements order made by Recorder Posner on 5 November 2019. The order provided that SH, then aged 12½, should live with her father and made no order for time with her mother.

The mother sought an extension of time and permission to appeal. She challenged the assessment of SH’s wishes and feelings, the weight given to her educational needs, the rejection of the Caseworker’s recommendations, the alleged risk of estrangement, and the fairness of the hearing.

1. Applications refused. The delay of nearly three months was inadequately explained. Shock, disappointment and medical difficulties did not show that the mother was unable to file an appeal in time. The order had begun to operate, and finality was important given the child’s age and the prolonged litigation.
2. Under FPR 30.12(3), an appeal may succeed where the decision was wrong or unjust because of procedural irregularity. Permission under FPR 30.3(7) requires a real prospect of success or another compelling reason.
3. The appellate court’s function is supervisory. The judgment must be read as a whole and in context. It need not address every submission or recite the law mechanically, but must explain the result sufficiently for the parties and permit effective appellate review. The appellate court must respect the trial judge’s evaluation of the evidence and avoid substituting its own view.
4. The Recorder was entitled to find that SH’s views were authentic and deserved significant weight, to reject the Caseworker’s assessment as unbalanced and unsupported by the evidence, and to adopt SH’s proposed arrangements. The evidence did not establish a clear and obvious risk of estrangement or alienation, and no procedural unfairness was shown.
5. An application to extend time is approached as relief from sanctions under FPR 4.6. The court considered the seriousness of the default, its explanation, all the circumstances, the underlying merits, and the effect of further litigation on SH. The three-stage approach in Denton and others v TH White Limited was applied as a useful framework.

• High Court (Family Division): The applications for an extension of time and permission to appeal were refused.
• Central Family Court: Recorder Posner’s order of 5 November 2019 provided that SH would live with her father and made no order for time with her mother. Permission to appeal was refused.