The case arose from public law family proceedings relating to a family of four children, whose mother was unable to care for them due to mental illness. The Father cared for all four children prior to the proceedings, however, the local authority had concerns that he was unable to cope and applied for a full care order for all four children. This application was rejected by District Judge Gamba (DJG) for all but the youngest child, against who he granted the local authority a full care order for adoption. The Father was advised there were no grounds to appeal, but he lodged a notice of appeal himself, 20 days outside of the 21-day period and provided no reasons for the delay.

The application was rejected by HHJ Farquhar (HHJF), as it was out of time and no reasons had been given for the delay. HHJF held that even if it had been made in time, there was no error in law or procedure. The Father did not appeal this decision until an adoption application was made in relation to the youngest child 8 months later. The Father appealed to HHJF, as well as making a separate appeal against DJG’s original decision. HHJF rejected the separate appeal but allowed the adoption appeal. The Father appealed HHJF’s decision and permission was given for that appeal.

Court of Appeal Decision

The Court of Appeal held that HHJF had acted in error in failing to evaluate the merits of the proposed appeal and by failing to broker that evaluation into his overall determination as to whether or not relief from sanctions should be granted.

The Court held that the merits of the appeal were unanswerable, as the three sentence evaluation provided by DJG in relation to the youngest child, in no manner complies with the form of analysis that is now required since the case of Re B-S [2013] EWCA Civ 1146, or even with the cases that predated it. Therefore, the Court held that if the Father were allowed to proceed with his appeal, it should succeed and he should be granted for relief from sanctions.

The Court emphasised that the rules regarding bringing appeals in family public law cases have an even greater importance and delays should be avoided at all costs, as they can have a significant impact on the welfare of the children, as well as causing difficulties for the local authority. Therefore in the present case, it said that the Father’s delay of 8 months was a significant matter when deciding whether to extend the time to appeal and whether to grant relief from sanctions. However, the Court held that this was an exceptional case due to the overwhelming strength of the merits of the case, which combined with the fact that there was due to be a complete re-evaluation of the adoption decision, outweighed the lack of justification for the delay in bringing the appeal.

Commentary

This decision is pivotal, as although such issues have been considered previously in civil cases, this was the first time that such an issue was considered in a family case at Court of Appeal level. Additionally, this decision demonstrates that the Courts are willing to make controversial and drastic decisions, if they are necessary. In this case, it is reassuring that, whilst the Court recognised the importance of ensuring proper compliance with procedural rules, what prevailed was a pragmatic and fair approach.

On the other hand, the decision could have had a significant and negative impact, in particular, to the adopters who were not aware that there would be any challenge. Despite recognising these problems, the Court failed to distinguish such cases from the usual civil rules. However, it did suggest that in future, in any case where a final care and placement for adoption order is made, the judge should clearly spell out to the that parties that they need to appeal within 21 days and record that they have told them this. Additionally, it suggested that any appellate court needs to ensure that such cases are processed as swiftly as possible. However, with the increase in litigants in person, the potential consequences that could occur should such simple failures continue to happen are concerning.

To view the full judgment in re H (Children) [2015] EWCA Civ 583, please click here.