Brief guide to Appeals

Written by McKenzie Friend | Andrew Weeden — Child Arrangements Orders

Permission to Appeal — When a Judge issues a direction or decision that you believe was contrary to the applicable law, the only option open to you is to make a formal appeal.

Just to be clear, you cannot issue an appeal because you dislike a judicial decision.

You can only appeal if (for example) —

  • The relevant law was misapplied
  • The Judge erred
  • Relevant law was not followed

In Children matters, the main applicable laws are contained within —

  • The Children Act 1989
  • Children and Families Act 2014
  • Family Procedure Rules 2010

Where you lodge your appeal will depend upon which Court and what type of Judge made the Order being appealed.

In the Family Court (County Court or lower Court) cases are normally heard by District Judges (DJ) or Circuit Judges (HHJ).

Which form do you need?

If you intend to appeal a district judge’s decision, the appeal is to the Circuit Judge within the Family Division of the High Court. You will need to use form N161.

Unless the Judge has set a specific time limit on the Order, as a general rule, you must appeal within 21 days of the applicable hearing.

If you intend to appeal an (HHJ) circuit judge’s decision, you will need to use form FP161 instead because they are more senior.

Do you need permission?

Unless you have been given permission to appeal by the Judge whose decision you are challenging, you must first apply for formal permission to appeal.

Some appeals must be delivered within 7 days of the relevant hearing.

If no time has been specified, the time limit to appeal by is usually 21 days from the relevant hearing.

As a guide, if the Court decision was made behind the scenes, where there was no hearing, which are known as Case management decisions on paper, appeals must be filed within 7 days of the date of Order.

Official information from HMCTS here.

What is needed for the appeal

  • The relevant form (N161/FP161)
  • Grounds of appeal
  • Skeleton argument

Grounds of appeal

Remember, you are appealing a mistake by the Judge. The Judge must have erred, ignored the applicable law or misapplied the applicable law in some way.

Grounds are legal reasons.

In making the grounds, you are not setting out your argument or your position statement.

Instead, you are giving short, bullet point style reasons.

Grounds should ideally take up no more than two sides of A4 paper.

Eg. The Judge erred by not following Practice Direction 12J in the full knowledge that Domestic Abuse was identified and a significant factor in the case.

Grounds of Appeal must be filed at the same time as the relevant form.

Skeleton argument

The skeleton argument picks up each of your grounds of appeal and expands them into more detail, including citations to the particular law or secondary legislation which you believe the Judge has got wrong.

You should have some case law (relevant authorities) available to back up your argument.

Case law means previous decisions made by the Appeal Courts which are similar in nature to your case and/or issues.

A good resource to search for Case Law is Bailii.

Another good resource is The Custody Minefield.

Your Skeleton must be filed within 21 days of filing the relevant form and grounds of appeal.

The principal reason why skeleton arguments are not filed at the same time is because, in most cases, a hearing transcript is needed to highlight the mistakes made by the Judge.

Transcripts of hearings

It is illegal to make any type of recording of a court hearing.

Instead, if you need to review what was said in a hearing, you will need to apply to the court for an official transcript.

Remember, a transcript is the only way you can prove what a judge said during a hearing. So assume you need one and get on and order it as soon as possible after the relevant hearing. Transcripts typically take 10 days to 2 weeks to produce.

Transcripts are obtained by using form EX107.

There is a cost for this. And it depends upon which transcription service you choose.

Bear in mind that costs are charged by the hour. So if you are able to narrow down the element of the hearing you need, to an approximate time, this will help to save some expense.

A note about CaseLaw

Litigants-in-person (LiP) and Counsel prepare grounds and arguments very differently.

Counsel have a greater understanding of the relevant authorities in former cases, which might support your argument.

Whereas LiPs tend to cherry pick paragraphs from caselaw which best suits the points of law which they are trying to make.

Not all cases are considered relevant authorities.

Not all cases have similar enough features to make the caselaw applied, relevant.

So my advice to researchers is — read the full judgement, in every instance.

Be sure that the caselaw you are quoting from, has enough similarities to make it relevant to your purpose.

And when submitting skeleton arguments, make sure, as a separate PDF bundle of documents, that you extract the full judgements. This assists the court in reviewing your caselaw citations.

Litigants-in-person

You do not need to be legally qualified, or use a solicitor, or take a barrister with you in order to file a permission to appeal.

Courts do make some allowances for LiPs.

That does not mean that your grounds of appeal, and skeleton argument, should not be well founded in the principles of law.

Beware however, the amount of bad advice available on social media. I have reviewed a number of Facebook groups, and have been horrified by the awful information being touted as credible and relevant.

In short, if you want to appeal, do your research!

Costs of Appeal

Filing a permission to appeal costs around £215. This is payable with the form unless you qualify for fee remission under the help with fees scheme.

Paying the other parties costs

As a rule, at the permission to appeal stage, you should not anticipate a costs Order application to be made against you.

However, if your permission to appeal application is successful, and you move forward to the appeal proper stage — in the event that you lose your appeal, you are likely to face a costs Order application against you. And this can be very expensive if the other part is well represented.

The appeal itself

At the permission to appeal stage, what you must satisfy the judge, is that your case has a realistic prospect of success. This means that your application must be considered to be at least 50% made out. And it must not be fanciful or frivolous.

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