Before : |
Sir Hugh Bennett, sitting as a single Judge. |
BETWEEN |
A |
APPLICANT/Plaintiff |
AND |
B |
RESPONDENT/Defendant |
IN THE MATTER OF AA
Application for leave to appeal out of time.
Advocate R. E. Colley for the Applicant.
JUDGMENT
bennett ja:
1. This is an application by the appellant/father for leave to appeal out of time from the decision of Commissioner Clyde-Smith and Jurats Le Breton and Nicolle of 16 June 2011. The notice of appeal is dated 11 July 2011. It was served on 12 July. The notice of application for leave to appeal out of time is dated 14 July 2011. Rule 24(3) of the Children Rules 2005 states that the notice of appeal must be filed and served within 10 days of the giving of reasons by the court for the decision against which the appeal is brought. The reasons for the decision were given on 16 June. The period of 10 days means 10 working days. Accordingly the notice of appeal should have been filed and served by no later than 30 June.
2. The Court of Appeal, in considering whether to grant leave to appeal out of time, must take into account matters including the extent of the delay, any explanation for it, the prospects of success of the proposed appeal, and the risk of prejudice to the other party, see para 19 of the judgment of the Court of Appeal in Crichton v Parker-Smith [2008] JCA 039.
3. This case concerns a very young child, who was born in 2010 and will very shortly be 1 year old. He was born with a heart defect. His mother is Polish and his father is resident in Jersey. The father and mother have parental responsibility. As I understand it, the father does not seek to challenge that the child is to continue to live with the mother in Poland. What he seeks is meaningful contact, and in particular direct contact in Jersey. The father's principal complaint is that the court on 16 June, whilst ordering that there be direct contact as agreed between the parties, declined to order contact to be in Jersey and further declined to make a contact order capable of being enforced in Poland.
4. I have been provided with the notice of application for leave to appeal out of time, the notice of appeal, the judgment of the court on 16 June, the Act of Court of 16 June and all previous Acts of Court, an affidavit of Advocate Colley sworn on 19 July and her skeleton argument of the same date. There has also been provided by the father's lawyers a folder of other documents and authorities, which I have not read as they are sufficiently set out in the skeleton argument. I am grateful to Advocate Colley, on behalf of the father, for her candid affidavit and her concise skeleton argument in support of the application, which set out why the notice of appeal was not filed and served in time and why it is said that there are real prospects of success for the father's appeal.
5. The period of delay in launching the appeal in this case is 12 days, which can be described as small. Apart from failing to file and serve the notice of appeal in time, it is apparent that the father and his lawyers were prosecuting his appeal diligently.
6. The explanation for the delay is that the father's advocate was under the misapprehension that an appeal in a matter concerning a child was governed by the Court of Appeal (Civil) Rules 1964. Thus she misled herself that the father had a period of one month, as opposed to 10 working days, within which to file and serve his notice of appeal. She only became aware of the correct time limit when it was pointed out to her by the mother's advocate. She says in her affidavit that she takes full responsibility for the error and that no blame can fall on her client for the delay.
7. The Children Rules 2005 have been in force since the latter half of 2005 and in any event since no later than 1 January 2006 i.e. for at least 5½ years. It is therefore perhaps a little surprising that the father's advocate was not seemingly aware of the time limit in Rule 24(3) of the Children Rules 2005. However, one can see from her affidavit how the mistake was made, namely having been recently engaged in civil appeals she thought that the same time limit applied for appealing in children matters as it does in civil matters. Be that as it may, it can fairly be said that the father himself is not to blame in any way for the delay.
8. As to prejudice, I cannot see that the delay in filing and serving the notice of appeal can have prejudiced the mother at all.
9. As to the prospects of success, it must always be borne in mind that the decision of the Commissioner and Jurats was essentially one of the court exercising a wide discretion. The father will have to establish, in order for his appeal to succeed, that the court was wrong in principle, or took into account irrelevant considerations, or failed to take into account relevant considerations, or was plainly wrong in the decisions at which it arrived.
10. I have carefully considered the helpful skeleton argument of Advocate Colley when assessing the father's prospects of success on appeal. It seems to me that he has good arguable grounds which raise matters, as set out in the notice of appeal and expanded in the skeleton argument, which merit being heard by the Court of Appeal. Whilst there are a number of issues raised in the notice of appeal, it seems to me that the core issues are concerned with the court's apparent refusal to order that at least some part of the direct contact should take place in Jersey and/or to make an order for contact capable of being enforced in Poland.
11. I grant leave to appeal out of time.
Authorities
Children Rules 2005.
Crichton v Parker-Smith [2008] JCA 039.
Court of Appeal (Civil) Rules 1964.