Case Update – Appeal of R (A Child)  EWCA Civ 89524.05.19
Ashley Lord‘s first appearance in the Court of Appeal ends in success.
Ashley represented the Appellant in her appeal against a finding that she remain in the pool of possible perpetrators for non-accidental injuries sustained by her 11-week-old granddaughter. The appeal was allowed. The Court of Appeal also took the opportunity to provide guidance on the meaning of “real prospect of success” in the test for permission to appeal in the family law arena – a decision that should be kept closely in mind when seeking permission to appeal.
R (A Child)  EWCA Civ 895
Ashley Lord for the Appellant.
The substance of this appeal stemmed from a finding of fact made by HHJ Anderson that the Appellant grandmother should remain in the pool of possible perpetrators for non-accidental injuries (bruising and fractured ribs) sustained by her 11-week old granddaughter.
The grandmother sought to Appeal this finding on the basis that the evidence did not underpin the findings made by the learned judge and accordingly the reasons given for keeping the her in the pool of possible perpetrators were insufficient. The Grandmother was successful on appeal and she was duly removed from the pool of possible perpetrators.
When seeking permission to appeal, the Appellant had correctly referenced the conflicting authorities set out within the Family Procedure Rules 2010 (as amended) as follows:
“Real prospect of success – There are two conflicting authorities on the meaning of a ‘real prospect of success’. In NLW v ARC  2 FLR 129, FD, Mostyn J held that the ‘real prospect of success meant it was more likely than not that the appeal would be allowed at the substantive hearing: “anything less than a 50/50 threshold could only mean there was a real prospect of failure”. Moor J, however, has held that a ‘real prospect of success’ is one that is realistic rather than fanciful, and does not mean a greater than 50/50 chance of success. … The weight of current first instance authority follows the approach of Moor J.”
Peter Jackson LJ took the opportunity brought about by this appeal to “…resolve any remaining doubt” as to the appropriate test for permission to appeal on an application to the Court of Appeal or to the Hight Court or Family Court. His Lordship, held as follows:
“The test for the grant of permission to appeal on an application to the Court of Appeal or to the High Court or Family Court under the first limb of the relevant sub-rule is that the appeal would have a real prospect of success”.
His Lordship continued:
“As stated in Tanfern v Cameron-MacDonald (Practice Note)  1 WLR 1311 CA at , which itself follows Swain v Hillman  1 AER 91 CA, there must be a realistic, as opposed to fanciful, prospect of success. There is no requirement that success should be probable, or more likely than not.”
This guidance should be kept closely in mind when applications for permission to appeal are made.
The full judgment is available at bailii.org