COURT OF APPEAL: NOT TOO KEEN ON PERMISSION BEING GRANTED FOR “ACADEMIC” ARGUMENTS

In J-S (Children) [2019] EWCA Civ 894, the Court of Appeal declined to hear an argument that was “academic”. It also gave guidance to judges when considering applications for permission to appeal on the “other compelling reason for an appeal” grounds.

“the judge gave permission under the “compelling reason” limb. In my view, there is a need for at least as much, and possibly more, caution on the part of a first instance family judge when deciding whether to grant permission to appeal under that limb as under the first limb, particularly where there is a possibility that the appeal may turn out to be academic”

THE CASE

The father appealed a finding of the judge. She considered, but rejected, an argument that the children in the case could be protected by their father being electronically “tagged”.   The Court of Appeal refused permission to appeal on a wider ground and then considered the issue whether it should consider an appeal in relation to tagging. The appellant argued that there was a need for guidance in relation to tagging.

THE JUDGMENT ON THIS ISSUE: COURT ONLY HEARS ACADEMIC APPEALS IN EXCEPTIONAL CIRCUMSTANCES

Peter Jackson LJ stated:

 

    1. Turning then to the appeal on ground two, the local authority and the Guardian submit that the court should not entertain it as it is academic in the light of the judge’s core decision that she would not order tagging in any event. For his part, Mr Devereux advanced this ground of appeal with moderation in the light of the outcome on ground one.
    2. In relation to academic appeals, we have been referred to the statement of principle in Hutcheson v Popdog Ltd. (Practice Note) [2012] 1 WLR 782, where Lord Neuberger MR held that, save in exceptional circumstances, this court may only entertain an academic appeal where three conditions are met: (1) where the appeal raises a point of some general importance; (2) where the respondent agrees to it proceeding, or is at least completely indemnified on costs or is not otherwise inappropriately prejudiced; and (3) where the court is satisfied that both sides of the argument will be fully and properly ventilated.
    3. Here, none of the conditions for hearing an academic appeal is satisfied. In the first place, this court is not aware of any pressing request from judges or practitioners for further guidance at this stage on the availability of tagging in cases of the present kind. In Re X & Y (No. 1) [2015] 2 FLR 1487, Sir James Munby P reviewed the availability of tagging in a case involving feared travel to Syria. At paragraphs 80-85 and 100 he referred to previous authority and to the HMCTS guidance, which notes that orders may only be made in the High Court and that states the question usually arises where there is a real risk of abduction. He noted that cases raising the issue of tagging are infrequent. At this hearing, we were referred to just four reported cases since 2003 and an anecdotal account of one other case. I do not consider that there is a pressing need for guidance on electronic tagging from this court at the present time. Cases where the issue may arise will be unusual and the decision will be case-specific.
    4. As to Lord Neuberger’s second requirement, the local authority and the Guardian do not consent to the appeal going ahead and there is no realistic form of costs protection that could be devised. Mr Geekie argues with good reason that it would be particularly inappropriate for guidance to be formulated without a real-life context that raised the hard practical issues that would have to be confronted.
    5. Thirdly, for the issue to be fully argued out, the court would need to hear submissions from the Ministry of Justice and the Legal Aid Agency and possibly from other organisations as well. The expense and delay of an adjournment for this to happen would be disproportionate.
    6. Returning to the present case, the priority now must be to further the children’s welfare by conventional means, rather than digressing into subsidiary issues such as tagging.
    7. For all these reasons, as we informed the parties at the conclusion of the hearing, we decline to offer further guidance on electronic tagging and we dismiss this appeal.

PERMISSION TO APPEAL UNDER THE “OTHER COMPELLING REASON LIMB”

The judgment then emphasised the caution that trial judges should exercise when being asked to grant permission under the “other compelling reason” argument.

Permission to appeal decisions
    1. Lastly, I note that after what was otherwise a very proper decision, the judge was persuaded to grant permission to appeal on the basis that there was a compelling reason for the appeal to be heard. The outcome of the appeal shows that it would have been preferable for the judge to have left the issue of permission to appeal on ground 2 to this court, as she did with ground 1.
    2. CPR r.52.3(2) and its equivalent for appeals within the Family Court, FPR 30.3(3), provide that an application for permission to appeal must be made to the lower court at the hearing at which the decision to be appealed was made or to the appeal court in an appeal notice. It is good practice to make the initial application to the lower court: Re T [2003] 1 FLR 531. Under CPR r.52.6(1) and FPR 30.3(7) permission to appeal can only be given where (a) the court considers that the appeal would have a real prospect of success, or (b) there is some other compelling reason for the appeal to be heard. So there is no doubt that the father was right to apply to the judge and that she had the power to grant permission to appeal. However, permission is rarely granted by the trial judge in a family case and there are good reasons for that. As Thorpe LJ put it in Re O (Family Appeals: Management) [1998] 1 FLR 431:

“Exceptionally, there are family appeals that raise a difficult point of law or principle. There the judge at first instance may well wish to grant leave himself. But if the proposed appeal seeks only to challenge the exercise of his judicial discretion in a family case, it would generally be helpful to this court if the judge at first instance was to leave to this court the decision as to whether or not the appeal should be entertained.”

A similar point was made by Butler-Sloss LJ in Re R (A Minor) [1996] Lexis Citation 2264:

“This was undoubtedly a very difficult case. But in an impeccable judgment, the Judge was in error on one matter only. He should not have granted leave to appeal. … In this sort of case it is particularly important that leave to appeal should not be granted because it only gives to the appellant a false hope in a hopeless appeal.”

  1. Here, the judge gave permission under the “compelling reason” limb. In my view, there is a need for at least as much, and possibly more, caution on the part of a first instance family judge when deciding whether to grant permission to appeal under that limb as under the first limb, particularly where there is a possibility that the appeal may turn out to be academic. Overall, judges should not be deterred from exercising their power to grant permission to appeal in a proper case: where, for example, the decision has turned on a choice of conflicting authorities, or where for some reason it is likely that this court would grant permission to appeal itself, or where an immediate permission decision has clear advantages. But in most cases it would be better for a decision to grant permission be left to this court as, apart from anything else, significant and avoidable costs may be run up by the parties having to prepare for a full appeal.