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AV v RM [2012] EWHC 1173 (Fam)

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  • (Moor J) 21 March 2012

    In brief: An appeal by a mother ("M") in children proceedings. Following M and the father's ("F") marriage breaking down in 2009, M and the children (E who is now aged 3 and P who is now aged 2) moved to London; F remained in Leicester. A shared residence order was made with F having the children four nights out of every fourteen. During subsequent proceedings, a Cafcass officer recommended that there was no good reason to change the status quo. However, at the final hearing, the district judge, whilst continuing the shared residence order, directed that the children should live with F primarily and attend a private school in Leicester; they would then live with M on alternate weekends. The judge also made a number of findings of fact in relation to M's dishonesty. M appealed. She argued that the decision was plainly wrong, that there was no good reason for the change in residence and the change in residence had been contrary to the Cafcass recommendation. She also submitted that there was an impression of bias as the district judge had visited M's home on the first day of the trial.

    Moor J took the opportunity of reiterating the correct procedure when dealing with appeals:

    "Appeals are now governed by the Family Procedure Rules 2010, pursuant to rule 30.3(7):

    "(7) Permission to appeal should 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 why the appeal should be heard.""

    Moor J looked at the decision of Mostyn J in NLW v ARC [2012] EWHC 55 [hyperlink] and said:

    "It has been said on many occasions that judges should not place a judicial gloss on the words of either the statute or the rules. With the greatest of respect to Mostyn J., it may well have been . . . . that his attention was not, in particular, drawn to a decision of the Court of Appeal, Tanfern Limited v Cameron MacDonald [2000] 1 WLR 1311, in which Brooke LJ. said the following (at para.21):

    "21. Permission to appeal will only be given where the court considers that an appeal would have a real prospect of success or that there is some other compelling reason why the appeal should be heard (CPR 52.3(6)). Lord Woolf MR has explained that the use of the word of 'real' means that the prospect of success must be realistic rather than fanciful [see Swain v Hillman The Times, 4th November 1999; Court of Appeal (Civil Division) Transcript No. 1732 of 1999]."

    The test for permission to appeal is, of course, exactly the same in the Court of Appeal. It, therefore, follows that this court is bound by Tanfern Limited v Cameron-MacDonald and I consider that there should be no gloss placed on the words of the rules other than to say that "real" means that the prospect of success must be realistic rather than fanciful."

    Having considered the submissions, Moor J decided to give M permission to appeal, being satisfied that there was a real prospect of success.

    Moor J also expressed the need for a Practice Direction on how the High Court should deal with an application for permission to appeal in order to achieve consistency in procedure.

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Published: 14/05/2012

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