England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(The President of the Family Division
(Dame Elizabeth Butler-Sloss))

		The Royal Courts of Justice Strand London WC2 Friday 19th July, 2002

1. LORD JUSTICE THORPE: The President delivered judgment yesterday. The judgment was reserved and handed down after a full hearing of the issues in relation to C, in a public law case brought by the Bury Metropolitan Borough Council.
2. The President came to a very clear conclusion that C should be immediately admitted to a school outside Appleby. The move was strenuously resisted by the mother, who has relatively recently, and perhaps not very substantially, established herself in the Paignton area. Her case had some support from local professionals, but the President came to the clear conclusion that Bury had made out their case and were entitled to the order.
3. The legal complexity in the case involved the resolution of human rights points which were ably and attractively argued by Mr Tolson QC on behalf of the mother. But the President dealt with those, after a careful consideration of the relevant authority, on an essentially pragmatic approach, giving considerable weight to the history, the background and the present realities. She refused an application for permission to appeal and granted a stay only for a period of 36 hours to enable the mother to reach this court.
4. The application for permission was renewed in this court yesterday, the very day of the President's hand down, and so too was the application for a stay. I considered both on paper last night and provisionally refused both, explaining myself and particularly relying on the clarity of the President's findings of fact and her comprehensive review of relevant authority in the human rights field. It seemed to me that the application for permission had scant prospect of success, and accordingly I refused the extension of the stay.
5. Mr Tolson, on behalf of the mother, has quite properly sought her opportunity for an oral hearing. Having heard him briefly this afternoon, I reach the conclusion that his application for permission is not to be confirmed as refused without consideration by another judge of the court. Accordingly, the application for permission will be adjourned to a further oral hearing without notice to be listed next Tuesday, before either two or three judges of the court, depending on the practicalities and the availability of judges within next week's constitution.
6. Mr Tolson having achieved that much ground, then inevitably says please extend the stay, at least over till next Tuesday. It is an attractive argument, but there are a number of contrary considerations. First and foremost is that this boy is guaranteed a place at the Appleby school only because the local authority have effectively been paying fees in advance of his arrival for some weeks now. So in a sense that is a wastage of public funds, since nobody is benefitting from the expenditure, and it is expenditure at a pretty high rate. Even if Mr Tolson were to persuade one of my brother judges that there is more merit in this proposed appeal than I can perceive, there will inevitably then be an interim before final listing and that interim will be months, not weeks, because of the intervention of the long vacation and the impossibility of labelling this urgent business in any sense of high priority.
7. Accordingly, I reach the clear conclusion that the sooner this child begins to benefit from the arrangements which the President has sanctioned, and which the local authority are having to fund at present in vain, the better. Accordingly, I think that the President's order should not be further stayed and that the child should start at Eden Grove whilst the future role of this court in the proceedings is clarified.
8. So in those circumstances, the permission to appeal application is adjourned and the application for a stay is refused.
ORDER: Application for permission to appeal adjourned; application for a stay of execution refused. (Order not part of approved judgment)