Family Order Appeal

Appealing to Court Of Appeal

Making an appeal after an unsuccessful hearing may appear a daunting prospect, however there is a course of action available for you.

You will not be allowed to appeal on the same evidence that was heard by the court in the first hearing. You will need to show that their decision was either (1) wrong or (2) there had been some procedural error made by the court.

Court Help Limited (CHL) were approached recently by a couple (the respondents) who had lost custody of their children towards the end of February. They decided they would make an appeal against the decision. We were contacted by the couple and agreed to take their matter on. This allowed us 48 hours to prepare a statement and present the relevant application form to the court. Our team was able to prioritise the matter in hand in order to comply with the appeal deadline.

At such short notice it is vital to project manage the process and to designate certain tasks to individuals within the team. 

Firstly, some of our team had to read the considerable court bundle which exceeded 400 pages. Secondly, in making the appeal it is always useful to include case law to back up the points being raised in the statement. Two members of the team were tasked with this to support the arguments being posed. Finally, a team member had to draft the application together with the supporting statement.

Time Limits

It is very important that you comply with the time scales. In final hearings the appeal deadline is 21 days. Once this has expired you will not be allowed to appeal the decision unless there are persuasive reasons.

What documents are required

If you are appealing to the High Court the document to use is FP161. For appeals to any other court the form is N161. In the case taken on by CHL form N161 was used as the final hearing had been before a circuit judge in the county court.

What were the grounds of appeal?

In this particular case there were several grounds that the appeal was based on, namely; Procedural, assumptions made by the judge, bias by the judge against the respondents.

Firstly, the judge disallowed the respondents from taking up the opportunity to fair representation. This goes against 'natural justice' which allows all parties in a court hearing to be fairly represented. 

The judge for example, only allowed the father a very short period of time to cross examine a witness. The interests of justice require both parties to have equal opportunity to present their case and ask questions. Furthermore, one of the respondents was involved in an accident which prevented them from being able to prepare for the hearing. The judge disallowed an adjournment of the hearing. This was in our view an unfair decision and was a ground on which we were able to use to support the appeal.

Secondly, the judge gave conflicting accounts in her summing up. On one hand she would refer to the mother as the dominant party in the relationship and on the other hand she said that the father was violent toward the mother. These statements do not equate to one another.

Thirdly, the judge made statements about an event which she was not entitled to given the facts were not proved. She placed too much weight on her assumption when making her final decision. The facts of the event did not match the assumptions being made.

Fourthly, the judge was critical of the mother because she refused medical intervention at the birth of her child. There is important case law which supports the mother in this instance which is mentioned later on in this article.

Fifthly, the respondents were denied sight of a parenting assessment until the court hearing. A previous court order had required this to be served on the respondents well in advance of the court hearing. The principle here is that evidence and reports are not concealed from the opposing party. Again, this procedural breach goes against 'natural justice'.

Case Law

There were a number of cases that backed up the claims made by the respondents that the process had not been conducted fairly.

LJ Butler-Schloss stated in the case of Re: MB (1997) the following:

‘a woman may refuse medical intervention – which would include antenatal and perinatal care - ‘for religious reasons, other reasons, for rational or irrational reasons or for no reason at all’ MB [1997] 8 Med. L.R. 217MB [1997] 8 Med. L.R.217.

When the judge in our case was critical of the mother referred to in the fourth point above she had clearly overstepped the boundary of fairness.

In another case we referred to in our statement was Re W (Children) [2014] EWFC 22, when Judge Keehan said; 'There needs to be a more hands-on approach by all parties with regard to compliance with court orders. The air of indifference by all parties in this case at the hearing in September to the fact that the father had not been served for five months was shocking'.

The importance of complying with court orders can not be stressed enough. In breaching of an order made by the court you are risking the case going against you even if you feel your case is strong. Here at CHL we take this part of the process extremely seriously as we are fully aware of the implications of failing to abide with a court order.

In Re O (Judgment: Adequacy of Reasons) [2021] EWCA Civ 149, Baker LJ relied upon the principle propounded in Re T [2004] EWCA Civ 558 that the “judge must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence''.

This quote was used by us to make the point that a judge has to look at all the evidence in a case not to just focus on one piece. The fact that the judge placed too much emphasis on one piece of evidence was a procedural error.

Court Help Limited found and fought for each of these arguments, making an effective case to the judge. You can call us now or fill in our contact form here.

Draft preparation

The preparation of the application and statement are the most important aspects of an appeal. This is your chance to put in writing where you feel the hearing was conducted wrongly.

This is a skilful job and can not be taken lightly, and often requires legal assistance, which Court Help Limited provides. It is important that if you make an assertion about a judge's decision that you can back up your belief with fact and evidence.

In this particular case the drafting took around 4 hours.

Review of Draft Documents

Reviewing the draft documents is especially important, you don’t want any errors in this piece of vital paperwork. That is why at CHL we have a team of proof-readers available to check for potential problems before the final draft is sent to the client for approval and thereafter the court.

The End Result

The application was successful in the Court of Appeal and the clients were given permission to proceed to a further hearing. They were ordered by the court to file skeleton arguments for consideration at the court. We had managed to turn a complex matter into a success, enabling the client to proceed with their appeal to the next stage.

The process of a family law appeal is complex, which is where CHL came in, to successfully supporting our clients.

If you need any assistance, please feel free to contact us by email at help@incourt.co.uk, call us at 07375757510 and read our reviews on  https://www.incourt.co.uk/reviews