(Court of Appeal, McFarlane, Gloster LJJ, Sir Robin Jacob, 11 June 2015)
[The judicially approved judgment and accompanying headnote has now published in Family Law Reports  1 FLR 952
Public law children – Care and placement orders – Permission to appeal out of time – Merits of proposed appeal
The full judgment is available below.The father's appeal from a decision refusing him permission to appeal care and placement orders was allowed and the orders were set aside.
When the mother was unable to care for the four children they went to live with the father. The local authority applied for care orders with a care plan for the eldest children to be placed in long-term foster care and for the younger two to be placed for adoption.
The district judge rejected the local authority proposals in relation to the three eldest children and approved their placement with the father under supervision orders. A full care order was made in respect of the youngest child and approval was given for placement for adoption.
The father issued a notice of appeal which was 20 days outside the 21 days provided under FPR 30.4(2)(b). Permission to appeal out of time was refused and even if the appeal had been lodged in time permission would have been refused anyway. The father did not apply for an oral renewal hearing of his permission application within 7 days established by FPR 30.3(6). The youngest child was placed with prospective adopters who applied for an adoption order.
The father sought leave to oppose the adoption order but his application was refused. He sought permission to appeal the refusal and applied to renew the application for permission to appeal the original placement and care orders for which an extension of time for appealing was necessary.
The application to extend time was treated as being an application for relief from sanctions to which FPR 4.6 applied. Permission to appeal the care and placement orders was refused but the father was granted leave to oppose the adoption application. The father appealed the refusal of permission to appeal.
It fell to be determined when considering an application to extend time for appealing in a children case what regard should be had to the merits of the proposed appeal.
The appeal was allowed. The final care and placement orders would be set aside and substituted for an interim care order. Although the statutory provisions requiring public law children cases to be disposed of within 26 weeks did not expressly apply to appeals, the timetable for an appeal in these cases had to be established in a manner which was compatible with the general principle that any delay in determining the upbringing of a child was likely to prejudice the welfare of the child. The impact upon the welfare of a child if placement had to be put on hold to permit a late application for permission to appeal was plain. Every effort should be made to avoid such an situation/
It would be wise for the judge in cases where a final care and placement order was made to express to the parties to need to file any notice of appeal within 21 days and for the resulting court order to record that the information had been given to the parties. Further, applications for permission to appeal in public law children cases should be efficiently dealt with.
Although the underlying merits of a proposed appeal was not specified as a factor to be considered in FPR 4.6(1) a judge might still have some regard to the underlying merits. This case was to be regarded as exceptional. While the child's life had moved on considerably by moving to live with prospective adopters the judge had underestimated the underlying merits of the father's appeal. Rather than the new grounds of appeal being merely arguable they were unanswerable. The flawed analysis led him to attribute no real weight to the underlying merits in his relief from sanction analysis. The proposed grounds of appeal were very strong.
Case No: B4/2014/3962
Neutral Citation Number:  EWCA Civ 583
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
Royal Courts of Justice
LORD JUSTICE MCFARLANE
LADY JUSTICE GLOSTER
SIR ROBIN JACOB
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Miss Kate Branigan QC and Mr Christopher Barnes (instructed by Harney and Wells Solicitors) for the Appellant
Mr Andrew Bagchi QC (instructed by Brighton and Hove City Council) for the Respondent
An interested party was represented by Miss Martha Cover
Hearing date : 6th May 2015
- - - - - - - - - - - - - - - - - - - - -
Lord Justice McFarlane
The present appeal raises the following question: “When considering an application to extend the time for appealing in a family case relating to children, what regard, if any, should be had by the judge to the overall merits of the proposed appeal?” Although this is an issue which has been considered in the context of civil appeals generally, we have been told that this case is the first occasion the point has arisen at Court of Appeal level in a family case.
Having set the background in that manner, I should immediately go on to stress that this judgment is being prepared against a tight deadline necessitated by a full first instance hearing which is due to take place this week. In addition, the point arises in circumstances which are strikingly clear, thereby rendering a subtle and nuanced evaluation of such differences as there may be between the precedent regarding ordinary civil law, to which I will refer, and family cases, unnecessary. In the circumstances it is not my intention in this judgment to offer general guidance on the question of relief from sanctions, over and above that which already appears in the reported case law, nor to be drawn to identify any distinction relating to family law in the manner that counsel’s submissions have sought to encourage. I should, however, record that I am currently unpersuaded that there is any ground for distinguishing family law, in this respect, from the ordinary run of cases.Background
On 19th September 2013 District Judge Gamba concluded public law proceedings with respect to four children. All four children had the same parents. Unfortunately the mother had for some time had substantial difficulties with her mental well-being and, as a result, she accepted that she was unable to care for the children. Prior to the commencement of proceedings the father had all four children in his care, including the youngest, a girl, W, born November 2012. Care proceedings were commenced when W was only four weeks old following concern about a suspected fall that the baby had had and as a result of growing local authority anxiety as to the father’s ability to cope with the care of all of the children. The older children were born in 2003, 2007 and 2009; they were therefore aged 9, 6 and 4 years at the time of the final hearing. The local authority’s application was for full care orders in relation to all four children. Their plan was for the eldest two children, X and Y, to be placed in long term foster care, but for the younger two children, Z, and the baby W, to be placed for adoption.
In the event District Judge Gamba rejected the local authority proposals with respect to the three eldest children. Instead, he entrusted them to the care of their father under supervision orders. In the course of his judgment he said this:
“It is clear from the evidence that the father offers good enough care for the children. I think that it is in fact more than this: I feel it is very good care. I am satisfied from the evidence that the father has separated from the mother and has reached a turning point, recognising that he must concentrate on the care of the children to the exclusion of his relationship. I am satisfied that he is intending to address his difficulties and has started to do this by engaging in counselling. I am satisfied that the children are for the main part doing well at school. I am satisfied that they have a significant attachment with the father."
The outcome favoured by the district judge with respect to young W was, however, different. He concluded that a full care order should be made and he made an order authorising the local authority to place W for adoption. The district judge’s judgment runs to just over 23 pages. Twenty-one of those pages set out his analysis of the evidence and his conclusion with respect to the three older children. The section with respect to W runs to only two pages, one page of which is occupied by the text of Adoption and Children Act 2002, s 1 [“ACA 2002”]. Indeed, the district judge’s total analysis with respect to the outcome for W is contained entirely within the compass of the following three sentences:
“I feel that the father does have further work to do in relation to his own situation and that coupled with the care of the three older children will occupy his time fully. I feel that the risk to W of returning to the father’s care at this time is too great for the reasons given by the Guardian and [expert], and that therefore the only order to be made in her best interests is as sought by the local authority for a placement order. I also consider that the welfare of the child requires me to dispense with the consent of the parents.”
Before the district judge the father was represented by counsel. This court has now been told that the father’s counsel advised that there were no grounds of appeal. Nevertheless the father issued his own Notice of Appeal on 30th October 2012 some 20 days outside the 21 day period during which an appeal should be lodged. His application for permission to appeal was considered on paper by HHJ Farquhar on 14th November 2013. The judge recorded his decision in a court order in the following terms (after a recital noting that there was no information provided as to why the appeal had not been brought within the statutory time limit). The order reads:
“1. The appeal is out of time and there are no grounds set out as to why that time should be extended.
2.In any event if the Notice of Appeal had been lodged in time permission would have been refused on the grounds that:
(a)No error in law or procedure has been made out.
(b)The decision that was reached by the learned district judge was one that was well within his discretion to reach in a case of this nature.
3. Any request to extend the time limit and/or to renew the permission to appeal will be considered by a circuit judge at an oral hearing.”
Despite the indication that an oral renewal of the permission application could be made, the father did not apparently take his appeal any further at that stage.
Matters moved on in W’s life. She was placed with prospective adopters in January 2014. They issued an adoption application with respect to her in May 2014. That application triggered a response from the father who obtained the services of a solicitor and counsel, Mr Christopher Barnes. An application was made to District Judge Gamba for the father to have leave to oppose the making of an adoption order under ACA 2002, s47. The application was rejected. The father and his legal team sought permission from a circuit judge to appeal that refusal. At the same time, and with eyes well attuned to the Court of Appeal decision in Re: B-S
 EWCA Civ 1146, Mr Barnes re-drew the father’s proposed grounds of appeal and applied to the circuit judge to renew the application for permission to appeal the original placement and care orders made in September 2013.
The father’s two applications for permission to appeal were heard by HHJ Farquhar on 12th November 2014. In the event permission to appeal against the September 2013 orders was refused, but the appeal on the issue of opposition to adoption was successful. In consequence, following a re-hearing, the father was given leave to oppose the adoption application. The adoption application is now set down for a five day hearing before Russell J starting 18th May 2015. At that hearing, as a result of having been given leave to oppose the adoption under ACA 2002, s 47, the father’s consent to adoption falls to be reconsidered in the light of the evidence and circumstances that are now prevailing.
Notwithstanding his success in achieving leave to oppose the adoption, the father, assisted by Mr Barnes, sought permission to challenge the judge’s decision regarding his proposed appeal against the September 2013 order. On 18th March I gave permission to the father to appeal HHJ Farquhar’s decision on that point, and it was that appeal that this court considered on 6th May 2015. At the conclusion of the oral hearing we announced our decision which was to allow the appeal, set aside the final care order and placement for adoption orders, replace them with an interim care order, and make ancillary directions designed to retain the validity of the adopter’s adoption application, maintain the final hearing booked for 18th May and render valid all procedural steps that had been taken with respect to the proposed adopter’s application, notwithstanding the removal, as a result of our order, of the original placement for adoption order.Relief from sanctions
Having now set the scene in deliberately general and non technical terms, it is necessary to describe with some precision the procedural point which is at the centre of this appeal.
Family Procedure Rules 2010, Part 30 applies to appeals to the Family Court (FPR 2010, r 30.1 (1)(b)). Where the court makes no contrary direction, the appellant must file the appellant’s notice within 21 days of the date of the decision of the lower court (FPR 2010, r 30.4 (2) (b)). Variation of time is government by FPR 2010, r 30.7 (1) which provides:
“An application to vary the time limit for filing an appeal notice must be made to the appeal court.”FPR 2010, PD 30 A para. 5.4 provides that:
“If an extension of time is required for filing the appellant’s notice the application must be made in that notice. The notice should state the reason for the delay and the steps taken prior to the application being made.”
FPR 2010, r 30.3 (5) establishes that a person who has been refused permission to appeal without a hearing may request the decision to be re-considered at an oral hearing. Any such request for an oral hearing “must be filed within seven days beginning with the date on which the notice that permission has been refused was served” (FPR 2010, r 30.3 (6)).
Despite the use of the mandatory word “must” in Part 30 of the rules, the court’s general case management powers set out in FPR 2010 r 4.1 include provision, except where the rules provide otherwise, for the court to “extend or shorten the time for compliance with any rule, practice direction or court order” (r 4.1 (3)(a)). In the present case the appellant was 20 days outside the 21 days provided for filing of the Notice of Appeal under r 30.4 (2)(b) and, further, he failed to apply for an oral renewal hearing of his permission application within the 7 days established by r 30.3 (6). It was therefore necessary for him to apply for the court to extend the time for compliance with those two provisions by invoking the jurisdiction established by r 4.1 (3)(a). In considering such an application the court must have regard to FPR 2010 r 4.5 which provides for sanctions to have effect unless the defaulting party obtains relief from the court together with r 4.6 which deals with “Relief from Sanctions”. Rules 4.5 and 4.6 are as follows:
(1) Where a party has failed to comply with a rule, practice direction or court order, any sanction for failure to comply imposed by the rule, practice direction or court order has effect unless the party in default applies for and obtains relief from the sanction.(Rule 4.6 sets out the circumstances which the court may consider on an application to grant relief from a sanction.)
(2) Where the sanction is the payment of costs, the party in default may only obtain relief by appealing against the order for costs.
(3) Where a rule, practice direction or court order –
(a) requires a party to do something within a specified time; and
(b) specifies the consequence of failure to comply,the time for doing the act in question may not be extended by agreement between the parties.
(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including –
(a) the interests of the administration of justice;
(b) whether the application for relief has been made promptly;
(c) whether the failure to comply was intentional;
(d) whether there is a good explanation for the failure;
(e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre-action protocol(GL);
(f) whether the failure to comply was caused by the party or the party's legal representative;
(g) whether the hearing date or the likely hearing date can still be met if relief is granted;
(h) the effect which the failure to comply had on each party; and
(i) the effect which the granting of relief would have on each party or a child whose interest the court considers relevant.(2) An application for relief must be supported by evidence.”
In his judgment of 12th November 2014, HHJ Farquhar rightly approaches the application to extend time as being one for “relief from sanctions” to which r 4.6 applies. The judge noted that there was “absolutely no evidence” before him as to why the father had taken no action during the period of 8 months which followed the refusal of permission of appeal on paper. The judge did however accept an account given by Mr Barnes on instructions to the effect that the father had noted the negative social work report, the negative Guardian’s analysis and the district judge’s negative judgment coupled with the pessimistic advice on appeal that he had received; the father had therefore concluded that his proposed appeal had no prospect of success and that is why he did not proceed with it at the time. Circumstances changed once Mr Barnes and his instructing solicitors came into the case and identified alternative grounds of appeal.
Judge Farquhar reviewed the circumstances of this case against the structure provided by sub clauses (a) to (i) in r 4.6. With regard to “the interests of the administration of justice” (r 4.6 (1)(a)), the judge accepted that justice might require a correct decision and the father was arguing that the district judge’s decision was wrong, but the judge also stressed that justice required “finality as well” so that the people involved in proceedings are able to move on once decisions had been made. This was therefore a point that cut both ways.
The application for relief from sanctions had not been made “promptly” at all (r 4.6 (1) (b)) and was not supported by any evidence as required by r 4.6 (2). The judge considered that the impact of delay “must certainly in this case be considered as huge”.
The father’s failure to comply with the deadline was “intentional” (r 4.6 (1)(c)) in that the father made a positive decision not to apply for an oral hearing. The explanation that he concluded that he would not succeed on the appeal was not, in the judge’s view, a “good explanation for the failure” (r 4.6 (1)(d)).
With regard to “the effect which the failure to comply had on each party” (r 4.6 (1) (h)) the judge said this at paragraph 26 of his judgment:
“The effect which failure to comply had on each party. On the father clearly it means he was not able to pursue his appeal. That is of course of huge importance to W. She would not have been removed from her foster placement she had been in for so long. She would not have been placed for adoption. She would not have been placed with adoptive parents. The adoption order application would not have been made – a huge, huge impact of the failure, and the effect that granting relief would have on each party. Clearly that means we would have to go back to square one. Just because I allowed the appeal would not mean necessarily we would not start again, and it seems to me that in itself would have a huge impact.”
The judge drew his conclusions together at paragraphs 27 and 28 as follows:
“So I am left with the position where a parent, who clearly has points to make – I am not saying there are not points to make in relation to the judgment –- but it is eight months out of time, now relying on totally different grounds to those which were considered by me back in November 2013. However drastic the impact of the decision is, and I concede these are the most drastic orders that can be made, there must come a point in time where any court has to say the delay is so severe that this does amount to an abuse of process as was submitted by Mr. Downs. It would be different perhaps if it was completely unarguable to oppose it, but that is not the case here. There are arguments both ways. I can see that. But here we have a judge following the view of the expert, following the view of the social worker, following the view of the guardian, giving a judgment after five days of evidence and no procedural irregularities are alleged. I clearly would not state, it would be totally inappropriate to say that there has to be strict adherence to the rules in every instance. There must be an element of tolerance in any court and perhaps even more so in the family courts. But a limit must be reached at some point. Clearly it would be totally inappropriate for me to say when that point would be, but bearing in mind the following that have occurred I have absolutely no doubt whatsoever that that point has been passed in this case.
- When one looks at the decision that the judge made it was entirely consistent with all of the expert evidence before him.
- The advice from counsel provided was not in favour of the appeal.
- The father made a conscious decision not to follow up on the oral application. The child had been placed with prospective adoptive parents one month after the time to apply for an oral hearing had lapsed.
- An adoption application has been made.
- We are now eight months after the original appeal.
- New grounds of appeal are substantially different and no leave sought or obtained, and
- no good explanation for the failure or even any evidence to support it.”
For those reasons the judge considered that it was “extraordinarily clear” that it was not possible for the father to proceed with his proposed appeal at that stage and the application for relief from sanctions failed.The appeal
Although, on behalf of the appellant, Miss Branigan QC, who now leads Mr Barnes, seeks to fine tune and trim some of the detailed factors found against his client by the judge in the r 4.6 evaluation, her essential point is that the judge was in error in failing to evaluate the merits of the proposed appeal and to broker that evaluation into his overall determination as to whether or not relief from sanctions should be granted. To make good that submission Miss Branigan argues that the overall merits of the underlying appeal are extremely strong. She points to the lack of any real evaluation of the case regarding W in the district judge’s judgment. In a case where the district judge concluded in terms that the father was providing “very good care” to the three older children and that they could remain in his care subject only to a supervision order, there was, submits Miss Branigan, a requirement for the judge to spell out why it was nevertheless necessary and proportionate for their baby sibling to be separated off and placed for adoption.
Although the district judge may not have had any knowledge of this court’s decision in Re: B-S
, which was only handed down some 2 days prior to the district judge’s judgment, Miss Branigan submits that the district judge should have been fully aware of the Court of Appeal decisions given some two or three month’s earlier upon which much of the judgment in Re: B-S
was based (Re R (Children)  EWCA Civ 1018; Re G
 EWCA Civ 965; Re S (A Child)
 EWCA Civ 926). Miss Branigan submits that the three sentence evaluation provided by the district judge in no manner complies with the form of analysis that is now required. Further, she points to the language used by the district judge to submit that even the factors set out in the judgment fail to establish sound findings relating to W’s welfare which indicate circumstances making it “necessary” that her Article 8 right to family life should be interfered with to such a radical extent. She submits for the district judge simply to “feel” that the father has “further work to do in relation to his own situation” and to “feel” that the risk to W of returning to the father’s care is too great is insufficient reasoning.
In contrast to the position apparently adopted before HHJ Farquhar, where the local authority fully contested the father’s application for relief from sanctions, Mr Andrew Bagchi QC, who now represents the local authority before this court, candidly concedes that Miss Branigan’s submissions as to the underlying merits of the appeal would succeed if permission to appeal were granted. In his skeleton argument at paragraph 4 he says this:
“If, contrary to the local authority’s primary position, the appeal were to succeed and the Court of Appeal were to grant an extension of time to the appellant to apply for permission to appeal against the care and placement orders made on 19 September 2013, the local authority would not oppose the grant of permission to appeal, nor, given the patent deficiencies in the judgment, could it sensibly oppose the grant of the substantive appeal against the making of the care and placement orders.”
Later, at paragraph 40 of his skeleton argument, Mr Bagchi says this with respect to the short analysis regarding W’s welfare contained in the district judge’s judgment:
“It is accepted by the local authority that these few lines do not meet the standards of judicial analysis identified as necessary in the sequence of decisions beginning with Re B  UKSC 33 and Re B-S or, frankly, those decisions which predated them (For example Re B (appeal: lack of reasons)  2 FLR 1035)."
It is, as we made clear during the oral hearing, highly unusual for a respondent to an appeal who has strong arguments in support of the judge’s decision on relief from sanctions, to make such a clear and frank concession as to the underlying merits. Unusual though it may be, I consider that the local authority’s concession is very well made and is one which accurately describes the view that must be taken of DJ Gamba’s judgment with respect to W. As Mr Bagchi states, the district judge’s judgment on this point would not have been accepted as an adequate welfare analysis even before the summer of 2013 and the advent of the Re: B-S
cases. For the reasons so forcefully argued by Mr Barnes, I too am clear that the father’s underlying appeal, if he were permitted to proceed with it, against the district judge’s determination, must succeed.
The key question, therefore, is how that striking view as to the underlying merits plays into the question of whether or not the father should be given relief from sanctions and allowed to bring his appeal so long out of time.
Given the advanced state of the underlying adoption application, the court permitted the prospective adopters to intervene in the appeal and we are most grateful to Ms Martha Cover, counsel instructed on their behalf, for her submissions. It is plain that the adopters took on the care of W without any indication that the underlying care and placement for adoption orders might be challenged by appeal and their anxiety at the situation that has now developed is well understood by this court. Ms Cover’s primary submissions were aimed at securing the status of the adoption placement during any interim period which followed the appeal before Russell J determines the adoption application. Given the agreement between the parties as to the terms of the interim order following the announcement of our decision to allow the appeal, it is not necessary to deal with those submissions in this judgment.Discussion(a) The importance of timely appeals in public law child cases
Before turning to the principal issue raised by this appeal, it is important to refer more generally to the impact of time limits within the context of appeals relating to public law children cases within the family justice system.
As is well known, it is now a statutory requirement for every public law child case to be disposed of by the Family Court within 26 weeks after the issue of the application (CA 1989, s 32(1) – as inserted by Children and Families Act 2014, s 14). The Family Court has limited powers to extend this time limit where an ‘extension is necessary to enable the court to resolve the proceedings justly’ (CA 1989, s 32(5)). In deciding whether to grant an extension, the court must in particular have regard to ‘the impact which any ensuing timetable revision would have on the welfare of the child to whom the application relates’ (s 32(6)(a)). Extensions are not to be granted routinely and are to be seen as requiring specific justification (s 32(7)). Each separate extension is to be for no more than 8 weeks (s 32(8)).
Whilst the new statutory provisions do not expressly apply to appeals, the timetable for any appeal in a public law child case must plainly be established in a manner which is compatible with ‘the general principle that any delay in determining [any] question [with respect to the upbringing of a child] is likely to prejudice the welfare of the child’ (CA 1989, s 1(2)) read in the light of the new statutory 26 week deadline. In this context the general time limit of 21 days for the issuing of civil appeals, which applies to appeals within and from the Family Court, takes on, in my view, an enhanced importance (FPR 2010, r 30.4(2) and CPR 1998, r 52.4(2)).
In recent times it has been the experience of this court, and I strongly suspect the experience of those discharging an appellate jurisdiction within the Family Court, that a growing number of parents and other family members whose child has been made the subject of a care order and an order authorising the local authority to place the child for adoption will, acting as litigants in person, issue a notice of appeal almost as a matter of course. In human terms, in an attempt to do anything that they possibly can to avoid the consequences of the orders that have been made, their actions are entirely understandable. As lay parties, they may not be aware of the 21 day time window for appealing and their notice of appeal may be lodged a significant time after the lower court has made its final orders.
Each application for permission to appeal necessarily takes time to progress to a paper determination and/or oral hearing. Delay often arises from the need to obtain a reliable note of judgment or a transcript. When this unwelcome period of time to process the permission to appeal application comes after a delay measured in months before the applicant has issued the notice to appeal, the impact upon the welfare of the child, and the ability of the local authority to progress with its responsibilities under the placement for adoption order are all too plain.
As a matter of law, if no notice of appeal is lodged during the 21 days permitted for the filing of a notice, a local authority should be entitled to regard any final care order and order authorising placement for adoption as valid authority to proceed with the task of placing the child for adoption. If that process has subsequently to be put on hold in order to allow a late application for permission to appeal to be determined, the impact upon the welfare of the child (particularly where prospective adopters who have been chosen may be deterred from proceeding) is also too plain to contemplate.
The problem that I have described is a necessary difficulty that arises from our system which contemplates that, notwithstanding the expiry of the 21 day period for lodging a notice of appeal, the court may, where to do so is justified, permit an appeal to proceed out of time. There will thus inevitably be a period after a late application for permission to appeal where time is taken to process the application before it is determined. Whilst accepting the inevitability of this source of, in some cases, highly adverse impact on the welfare of a child, every effort should be made to avoid its occurrence. One strategy which would seek to avoid the problem would be for the judge in every case where a final care and placement for adoption order is made to spell out to the parties the need to file any notice of appeal within 21 days and for the resulting court order to record on its face that that information was given to the parties by the judge. Secondly, this court and any appellate judge in the Family Court, must continue to strive to process any application for permission to appeal in a public law child case with the utmost efficiency. Finally, the fact that an application for permission to appeal which relates to a child in public law procedure is out of time should be regarded as a very significant matter when deciding whether to grant ‘relief from sanctions’ or an extension of time for appealing.
It follows from the observations that I have made, that, in agreeing that permission to appeal should have been granted in the present case, I regard this as an exceptional case for the reasons to which I now turn.(b) The Present Case
HHJ Farquhar who, by November 2014 when he gave his judgment, was well aware of the decision in Re: B-S
. At paragraph 16 he says:
“Looking at the judgment as a whole, again which of course I have done, in short, it is not the sort of judgment that is seen or certainly should be seen in this post-B-S world. It does not deal with the normal things that are raised. That does not say that all the points are not covered. I am not going to deal with that at this stage, but all I do say is that looking at the judgment one can understand the points that have been made by Mr Barnes. I am not saying that that means I can see a real prospect of success, which is obviously the test I have to apply in considering leave to appeal, but simply that I can understand the basis upon which the stance is taken by counsel on behalf of the father.”
Thereafter the judge, as I have described, makes no reference to the underlying merits of the proposed appeal and that point does not come into his evaluation within the structure of the r 4.6 (1) factors.
Whilst it is of note that the underlying merits are not specified as a factor in the list in r 4.6 (1) Mr Bagchi accepts that in having regard to “all the circumstances of the case” a judge may have some regard to the underlying merits. He submits, however, that the merits should not become a magnetic factor which inexorably dictates the outcome of the sanctions relief application. Mr Bagchi helpfully took us to some authorities decided in the context of a similarly worded provision which, until April 2013 appeared at Civil Procedure Rules r 3.9. The cases to which we were referred were Sayers v Clarke Walker (a firm) Practice Note
 1 WLR 3095; Taylor v Lawrence
 QB 528 and Norris v Norris, Haskins v Haskins
 2FLR 1124. We were also referred to the current post April 2013 reform wording of CPR, r 3.9 which is in these terms:
“1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders.”
In this context we were naturally referred to this court’s decision in Mitchell v News Group Newspapers Ltd
 1 WLR 795 in which it was accepted that “all the circumstances of the case” did indeed include “all the circumstances of the case” but, as Jackson LJ states at paragraph 36, “the other circumstances should be given less weight than the two considerations which are specifically mentioned”.
In R (on the application of Hysaj) v Secretary of State for the Home Department
 EWCA Civ 1633 this court was invited to give guidance as to the approach to be taken to applications for extensions of time under CPR, r 52.6 for filing Notices of Appeal following the decision in the Mitchell and other subsequent cases. Moore-Bick LJ said this at paragraph 46:
“If applications for extensions of time are allowed to develop into disputes about the merits of the substantive appeal, they will occupy a great deal of time and lead to the parties incurring substantial costs. In most cases the merits of the appeal will have little to do with whether it is appropriate to grant an extension of time. Only in those cases where the court can see without much investigation that the grounds of appeal are either very strong or very weak will the merits have a significant part to play when it comes to balancing the various factors that have to be considered at stage three of the process. In most cases the court should decline to embark on an investigation of the merits and firmly discourage argument directed to them. Here too a robust exercise of the jurisdiction in relation to costs is appropriate in order to discourage those who would otherwise seek to impress the court with the strength of their cases.”
As I indicated at the start of this judgment it is not my purpose to suggest that the approach in family cases should differ from that applied in the ordinary civil jurisdiction. It is a point that could be left open for another day in a case where the merits are less strikingly clear as they are in the present case, yet the consequences of the order, namely implementation of an adoption plan, remain at the highest level of intervention and therefore consequence for the proposed appellant and his or her children.
In approaching this case I do not take any issue with HHJ Farquhar in highlighting the eight bullet points set out in paragraph 28 of his judgment. In particular, the significance of the manner in which W’s life has moved on in consequence of the district judge’s orders is of a high order. On the basis that the district judge’s order stood, W was welcomed into the family of her prospective adopters on the basis that this was to become her family for life and they and she have no doubt engaged upon establishing a close and loving relationship of that high order.
On the particular facts of this case, however, in my view those very substantial factors are outweighed by two opposing factors namely, the acceptance that the district judge’s analysis is insupportable and, secondly, the fact that on a subsequent occasion HHJ Farquhar granted the father leave to oppose the adoption and there is now to be a full re-evaluation of W’s welfare needs in the light of all of the current circumstances undertaken by Russell J next week.
I consider that HHJ Farquhar fell into error in two respects. He underestimated the underlying merits of the father’s appeal, considering that the new grounds of appeal were merely arguable when, as I have indicated, they were in truth unanswerable. That flawed analysis caused him to attribute no real weight to the underlying merits in his relief from sanction analysis. That this is so is demonstrated by a key sentence within paragraph 27 of the judge’s judgment where he says “It would be different perhaps if it was completely unarguable to oppose it, but that is not the case here.” That sentence is entirely in line with the approach described by Moore-Bick LJ in the paragraph I have quoted from Hysaj above. This is a case where the court can see without much investigation that the proposed grounds of appeal are indeed “very strong” and, as Moore-Bick LJ states, “the merits have a significant part to play when it comes to balancing the various factors that have to be considered”. On that ground alone, I would, therefore allow the appeal.
The fact that W’s welfare is to be re-investigated at a full hearing before a High Court judge this week indicates to my mind that it is entirely right that this court should now set aside the district judge’s welfare determination with respect to W and the consequent full care order and placement for adoption orders that he went on to make so that that erroneous determination and the orders that flowed from it can have no bearing on the unenviable task that Russell J now has to undertake in determining where the best interests of this young child may lie.
For all of those reasons I therefore concluded that the appeal should be allowed and agreed with my Lords to make the orders that we made at the conclusion of the oral hearing.Lady Justice Gloster
I agree.Sir Robin Jacob
I also agree.