A stay, for my non-lawyer readers, is where a Court makes a decision (say for example that the child should have contact with the father twice per week) and one party wants to appeal the order and asks the Court for an order that pending the appeal the Court’s decision should not take effect.
Up until today, the best guidance on the legal tests for stays and process had been the Mostyn J decision in NB v London Borough of Haringey 2011
https://www.bailii.org/ew/cases/EWHC/Fam/2011/3544.html
First, the court must take into account all the circumstances of the case. Second, a stay is the exception rather than the general rule. Third, the party seeking a stay should provide cogent evidence that the appeal will be stifled or rendered nugatory unless a stay is granted. Fourth, in exercising its discretion the court applies what is in effect a balance of harm test in which the likely prejudice to the successful party must be carefully considered. Fifth, the court should take into account the prospects of the appeal succeeding. Only where strong grounds of appeal or a strong likelihood of success is shown should a stay be considered.’
Mostyn J encountered a stay application again in this case, Re HH (A Child :Stay of Order pending appeal) 2022 and expands on that guidance
https://www.bailii.org/ew/cases/EWHC/Fam/2022/3369.html
In this case, the Court at first instance had reached a decision that a father should have unsupervised contact for one hour twice a week. The contact had been stopped for 2 years. The mother sought to appeal that order and sought a stay of the order about contact.
As Mostyn J points out, whereas in a money case the money can be paid and then paid back if the appeal succeeds in an appeal about resuming contact if the contact happens before the appeal can be heard, that can be difficult. If the contact is happening before the appeal takes place it could materially affect the outcome of the appeal or the benefit of it.
Mostyn J says that when the Court is considering the application for stay at the same time as permission to appeal, the NB principles, derived from a case called Wenden in the Hong Kong Courts (so Mostyn J calls them the Wenden principles) should apply.
He says that in a case where the Court is asked to determine a stay application BEFORE the permission to appeal application is resolved, it is not practicable to consider the last point – the prospects of the appeal succeeding – because that’s treading on the toes of the permission to appeal application.
He says further that in such circumstances, the Court should consider granting a stay UNTIL the permission to appeal application can be dealt with, if the appeal is not fanciful and the order taking place would irreversibly extinguish the purpose of the appeal (i.e as here where the issue was the resumption of contact between a child and a parent)
Where the issue is whether a parent should have direct contact to their child the refusal of an interim stay, resulting in such direct contact taking place, in effect decides the very subject matter of the appeal. In this case, whatever I may think about the reasonableness of the mother’s stance, and the likelihood of her being awarded PTA, it is an undeniable fact that without an interim stay pending determination of PTA, the viability of mother’s proposed appeal is pre-emptively extinguished.
Therefore, if that would be the consequence, the court should normally award such an interim stay. It should not be seen as being of the same character as a full stay of execution awarded at the same time as the grant of PTA. Such a full stay should only be awarded if the Wenden Engineering principles are satisfied. By contrast, the award of an interim stay pending determination of PTA should be seen more in the character of a suspension of the order under appeal, doing no more than holding the ring pending that determination. It should not be seen as establishing any precedent for, or any indication as to the outcome of, the full stay application.
I emphasise that the appeal court should only award an interim stay pending the decision on PTA where (a) the grounds of appeal are not fanciful and (b) implementation of the order pending the PTA decision would irreversibly extinguish the viability of the proposed appeal. If this latter criterion is not met, because, for example, conditions can be imposed to ensure that any implementation of the order in the meantime can be effectively reversed, then the appeal court should leave the question of a stay to the judge determining the PTA application.
Where such an interim stay is awarded the court should give directions to bring the PTA application before the court at the soonest opportunity. Further, I would suggest that in such circumstances the appeal court should allow the respondent to the appeal to make submissions in writing under FPR PD 30A para 4.22 as to whether PTA should be granted and/or a full stay of execution awarded.
suesspiciousminds 
The 1959 Declaration On the Rights of the Child, Principle 6, clearly means that the only circumstance in which the state should cause a child to be raised by anybody other that BOTH his or her NATURAL parents, is when it would literally be IMPOSSIBLE for that child to be raised by both his natural parents.
Unfortunately, this high hurdle for the state to have to jump before interfering at all in a child’s blood relationships with his mother and father is replaced in the UK’s Children Act, by a much weaker (and vague) test, merely the child’s best interests as estimated by the state’s court on the balance of probabilities. This discrepancy between Principle 6 and the Children Act leads to the modern British state often breaching the Principle 6 rights of children, harming children and their parents in the process.
Regarding the new judgment reported here, the learned judge erred in his guidelines in that he failed to take into account not only of Principle 6, but also of the symmetry of the dilemma he was faced with, due to the common sense principle that what is sauce for the goose should be sauce for the gander too. His arguments for one course of action can equally well be turned around and applied to the opposite effect, the shoe on the other foot so-to-speak.
For example, concern is expressed that in this or that hypothetical case “the order taking place would irreversibly extinguish the purpose of the appeal”. But no concern is expressed that, in a contact case, the staying of the order pending an appeal might well extinguish irreversibly the purpose of the order. The purpose of the order whose purpose was thus extinguished is likely to be the mitigation of the effect of parental alienation efforts which the order helps to frustrate. For, any absent parent denied contact is likely to assert that his successful application for contact was contested unsuccessfully, and is now being appealed, precisely in order to enable the resident parent to continue, unimpeded, for as long as possible, a course of conduct that amounted to parental alienation.) The longer a resident mother can delay her child’s contact with an absent father from whom she is trying to alienate the child, the better the prospects of her succeeding in alienating the child from his or her father permanently.
Likewise, it is said that “Where the issue is whether a parent should have direct contact to their child the refusal of an interim stay, resulting in such direct contact taking place, in effect decides the very subject matter of the appeal.” But, equally, the granting of a stay, even an interim stay pending consideration of appeal permission, resulting in contact being delayed at least until appeal permission is granted, also decides the very subject matter of the appeal in effect, but in the opposite direction. For justice delayed (for a child whose Principle 6 right is being breached by the state), is justice that state has denied (to that child).
Not sure whether my first comment was submitted successfully. Please email me if it wasn’t and delete this.
The 1959 Declaration On the Rights of the Child, Principle 6, clearly means that the only circumstance in which the state should cause a child to be raised by anybody other that BOTH his or her NATURAL parents, is when it would literally be IMPOSSIBLE for that child to be raised by both his natural parents.
Unfortunately, this high hurdle for the state to have to jump before interfering at all in a child’s blood relationships with his mother and father is replaced in the UK’s Children Act, by a much weaker (and vague) test, merely the child’s best interests as estimated by the state’s court on the balance of probabilities. This discrepancy between Principle 6 and the Children Act leads to the modern British state often breaching the Principle 6 rights of children, harming children and their parents in the process.
Regarding the new judgment reported here, the learned judge erred in his guidelines in that he failed to take into account the symmetry of the dilemma he was faced with, due to the common sense principle that what is sauce for the goose should be sauce for the gander too. His arguments for one course of action can equally well be turned around and applied to the opposite effect, the shoe on the other foot so-to-speak.
For example, concern is expressed that in this or that hypothetical case “the order taking place would irreversibly extinguish the purpose of the appeal”. But no concern is expressed that, in a contact case, the staying of the order pending an appeal might well extinguish irreversibly the purpose of the order. The purpose of the order thus extinguished is likely to be the mitigation of the effect of parental alienation efforts which the order helps to frustrate. Any absent parent denied contact would be likely to assert that his successful application for contact was contested unsuccessfully, and is now being appealed, precisely in order to enable the resident parent to continue, unimpeded, for as long as possible, a course of conduct that amounted to parental alienation. The longer a resident mother can delay her child’s contact with an absent father from whom she is trying to alienate the child, the better the prospects of her succeeding in alienating the child from his or her father permanently, her goal.
Likewise, it is said that “Where the issue is whether a parent should have direct contact to their child the refusal of an interim stay, resulting in such direct contact taking place, in effect decides the very subject matter of the appeal.” But, equally, the granting of a stay, even an interim stay pending consideration of appeal permission, resulting in contact being delayed at least until appeal permission is granted, also decides the very subject matter of the appeal in effect, but in the opposite direction. For, justice delayed for a child whose Principle 6 right is being breached by the state, is justice that the state has denied to that child.