In re HH (A Child: Stay of Order pending Appeal)

An appeal court considering an interim stay before determining permission to appeal should not pre-empt the permission decision by assessing whether the appeal is likely to succeed. The court should ordinarily grant an interim stay where the grounds are not fanciful and implementing the order would irreversibly extinguish the viability of the proposed appeal.

In child-contact cases, implementation may decide the very subject matter of the appeal. An interim stay in that situation suspends the order merely to hold the ring pending the permission decision. It does not indicate the merits or establish the position on any later full stay application.

A Recorder found that a father had not sexually or physically abused his young son and ordered direct, unsupervised contact to begin on 26 December 2022. The mother filed an appeal in the High Court challenging the factual findings and alleging procedural unfairness. She also sought a stay of the contact order.

The President extended time for filing perfected grounds and a skeleton argument but did not determine the stay application. The application was therefore placed before Mostyn J urgently, before permission to appeal had been determined. The central issue was the proper approach to an interim stay pending that determination.

1. Interim stay pending permission. The principles in Wenden Engineering Services Co Ltd v Lee Shing UEY Construction Co Ltd (HCCT No 90 of 1999), adopted in NB v London Borough of Haringey [2011] EWHC 3544 (Fam), ordinarily govern a full stay pending appeal. They require consideration of all the circumstances, recognise that a stay is exceptional, require cogent evidence that the appeal would otherwise be stifled or rendered nugatory, require a balance of harm, and include consideration of the prospects of success.

2. Where an appeal court considers a stay before determining permission to appeal, it should not decide the prospects-of-success limb. Doing so would pre-empt or usurp the permission function. The court need only be satisfied that the grounds are not fanciful and that refusal of an interim stay would stifle the proposed appeal or render it nugatory.

3. Where direct contact with a child would effectively determine the subject matter of the appeal, implementation is practically irreversible and the appeal’s viability may be extinguished. In those circumstances an interim stay should normally be granted. It is a temporary suspension which holds the ring and gives no indication of the outcome on permission or on any later full stay application.

4. If implementation can be effectively reversed by conditions, the appeal court should leave the stay question to the judge determining permission. Where an interim stay is granted, the permission application should be expedited, and the respondent should ordinarily be invited to make written submissions on permission and any full stay application under FPR PD 30A para 4.22.

5. It was good practice to seek permission to appeal and any stay from the trial judge, preferably when judgment is handed down. This followed P v P (Variation of Post-Nuptial Settlement) [2015] EWCA Civ 447, with the court stating that proceeding without doing so would be extremely bad practice.

6. The mother’s grounds were not fanciful and refusal of an interim stay would extinguish the viability of her appeal. An interim stay of the contact order was therefore granted. Indirect video contact was to continue, and the father was permitted to file short responsive submissions before the expedited permission and full-stay applications.

• Family Court: Recorder Wood KC, on 11 November 2022, dismissed the allegations of sexual and physical abuse and ordered direct, unsupervised contact to commence on 26 December 2022.
• High Court (Family Division): The mother filed an appeal and sought a stay. Mostyn J granted an interim stay pending determination of permission to appeal and directed expedition of the permission and any full-stay application.