This is a post by Sarah Phillimore
What do you do if the court orders the removal of a child and you need to appeal against that order urgently? If the removal is set to happen that day you will need to ask the court to ‘stay’ the order while you seek an urgent appeal.
The case of N (Children: Interim Order/ Stay), Re  EWCA Civ 1070 (12 August 2020) is a recent decision on this point.
On 6th May 2020, 3 children were removed from their mother’s care. They were already the subject of interim care orders.
The local authority clearly had concerns about the mother’s ability to stay separate from the father and had asked the court to remove the children before, unsuccessfully. However at a one day hearing in May, hearing evidence only from the social worker, without the presence of the Guardian, who was unable to attend and the further difficulty that interpreters were required, the court ordered the children’s removal.
The mother’s barrister asked for the court order to be ‘stayed’ i.e. not put into effect until an urgent application could be made to appeal. The parents had repeatedly asked to be allowed to give evidence if the Judge was contemplating removal.
The application for a stay was refused and the children went to foster care that evening. The mother’s counsel had difficulty taking instructions due to lack of interpreter once the remote hearing had ended. Although application for permission to appeal was made on 11th May, it wasn’t accompanied by a request for a stay and there was no transcript of the judgment until 29th May. Permission to appeal was eventually granted on 29th June, the appeal was successful, and 3 months after they had been removed, the children returned to their mother.
The Court of Appeal decided a short stay should have been granted in this case:
I consider that the request for a short term stay should have been granted, particularly where the mother was at a disadvantage in instructing her lawyers. The reasons given by the judge fell short of justifying refusal. The nature of the risks involved in the children remaining at home for a further very short period can be measured by the fact that the court itself had sanctioned them remaining there between 27 April and 6 May for procedural reasons. Further, as the judge herself acknowledged, there was no real risk to the children being taken out of the country and, bearing in mind that the family had not disappeared in the previous six months when it could have done, the prospect of internal flight was hardly likely either.
What do I have to do if the Judge refuses my request for a short stay?
Hopefully it will be possible for the Judge to agree a short delay before any order takes effect in order to give you an opportunity to make an urgent appeal. If however the Judge refuses, you need to act quickly.
Any application for a longer stay i.e. while you are waiting for an actual decision on an application to appeal, is is determined by the principles set out in Hammond Suddart Solicitors v Agrichem International Holdings Ltd.  EWCA Civ 2065.
I received the following advice via email after making such an application a few weeks before this judgment was delivered. You are encouraged to make your application in working hours but if you can’t call the security officers at the Royal Courts of Justice on 020 7947 6260, who will refer you on to the Duty Clerk.
Advice from the court received 14th August 2020
URGENT applications should be submitted to the court via email to this address: firstname.lastname@example.org between 9am and 4.15 pm
What may be deemed as urgent?
Cases where in the interests of justice a substantive decision is required within 7 days. The types of work listed below fall into this category
• Child cases ;
• Committal appeals;
• Applications for stay of removal;
• Cases (including ancillary applications) with a hearing listed in the Court of Appeal within the next month;
• Applications for an urgent stay of execution;
• Covid-19 related cases e.g. medical guidance regarding priority patients;
NON URGENT applications should be emailed to: email@example.com
All appellant’s notices will be accepted in the first instance on the basis that they may be rejected at a later date for want of jurisdiction.
Fresh applications for permission to appeal must include:
• a completed appellant’s notice (form N161);
• grounds of appeal on a separate sheet;
• an undertaking to pay the appropriate court fee via your PBA account, a completed Help with Fees form (EX160) or by contacting the *RCJ Fees Office (see below); and
• a copy of the sealed order being appealed.
• A transcript of judgment should also be provided if available (or should be ordered immediately)
*Access to the Fees Office will be on an appointment only basis.
An appointment can be booked from the 1 June 2020 by calling the telephone number 0207 947 6527 each Monday, Wednesday and Friday between the hours of 10am to 2:00pm or by emailing the following address firstname.lastname@example.org . If you are unable to attend in person please contact the Fees Office by telephone or email and a member of the team will assist you.
The public counter at E307 (registry) remains closed and the drop box facility is no longer operating.
Once the appellant’s notice is issued, all queries should continue to be emailed to the following addresses:
As our IT capacity for remote working increases we will look to provide a limited telephone service to our users.
The court will issue orders electronically for the time being.