Tuesday, 17 April 2012

Appealing against Care Orders: a Guide for Parents: Guest Post by Richard Carroll, Pupil Barrister at 4 Brick Court


If you have the benefit of legal representation, then your first port of call should be to your solicitor in asking for advice on what to do next. Even if you do not like their advice, you should give it very serious consideration. Care proceedings are emotionally fraught by their very nature and a decision you strongly disagree with is not one which can necessarily be challenged legally.

If you disagree with the decision and you do wish to challenge it, and are legally represented, the first thing you should do is to ask for the person who represented you at the final hearing to write an advice on appeal. It would also be of benefit to you and to them if you wrote down exactly why you think the case should be appealed and to ask them for their professional opinion on it. If asked, whoever represented you should provide a written advice and so do not be afraid of asking for one.

FUNDING

A lawyer cannot advise that the legal services commission pay for an appeal if they believe the prospects of success are poor. If your lawyer believes the prospects of success are better than poor there is an automatic right of appeal but they should not appeal unless they believe there are reasonable prospects of success. This is because an appeal court can make a costs order against the lawyer conducting the appeal if they feel the appeal should not have been undertaken.

If your lawyer does believe that there should be an appeal then the question of how that appeal should be funded arises. Although there is an automatic right to legal aid funding for parents in care proceedings, this rule does not apply to appeals. Perversely, it is possible that in care proceedings a legally aided parent may get the order they seek, and be refused legal aid for legal representation for an appeal against that order brought by someone else, which they have no control over.

Legal aid for appeals in care proceedings are “means” and “merits” tested. The merits test is that the chances are better than poor as discussed above. The means test is in two parts. Firstly, does the legal services commission believe you have the means to pay for the appeal yourself? This is a standardised test which your solicitor will be able to advise you on, if they feel there is merit in an appeal. Secondly, even if you cannot be expected to fund it yourself, if there are other people or organisations that could reasonably be expected to fund the appeal, you may be refused funding. This seems in principle that the more significant the breach of a persons legal rights are, the greater the danger they will be denied legal aid to appeal. Whether or not that could ever be seen as morally justifiable is unfortunately irrelevant for the purposes of this article. It is the law as it stands.

GOING IT ALONE

If you are going to conduct the appeal in person, you should consider whether or not you want help from what is called a McKenzie friend. They are non-lawyers who can provide moral support, take notes, help with case papers and quietly give advice on the conduct of the case. They should normally be allowed to attend any court hearings with you. If you are going to seek the assistance of a McKenzie friend, you should inform the court of who you will have assisting you and send in a short CV setting out their experience. This can be a friend of yours or someone who regularly acts as a McKenzie friend.

If you want to appeal in person you first must decide the basis on which you are appealing. There are 3 grounds on which you can appeal from the Family Proceedings Court. These are:

  1. The decision of the magistrates was wrong in law.
  2. The decision of the magistrates was outside their jurisdiction. (They did not have the legal power to make the order they did.)
  3. The decision of the magistrates was plainly wrong. (This is a very high test as there may be a number of reasonable decisions which could have been come to. You would have to show a clear deficiency in the reasoning of the magistrates.)

What you must then do is as follows:

  • You will need to lodge an Appellant’s notice with the court you are appealing to, which will be the County Court or the Principal Registry of the Family Division, within 21 days of the decision. You will have to file with this:
    1. Two additional copies of the appellants notice;
    2. one copy of the appellant’s notice for each of the respondents;
    3. one copy of the appellant’s skeleton argument for each copy of the appellant’s notice that is filed;
    4. a sealed or stamped copy of the order being appealed or a copy of the notice making the order;
    5. a copy of any order giving or refusing permission to appeal, together with a copy of the court’s reasons for allowing or refusing permission to appeal;
    6. any witness statements or affidavits in support of any application included in the appellant’s notice.

  • You must also file an appeal bundle which will need to include:
    1. A sealed or stamped copy of the appellant’s notice;
    2. a sealed or stamped copy of the order being appealed, or a copy of the notice making an order;
    3. any affidavit or witness statement filed in support of any application included in the appellant’s notice;
    4. where the appeal is against a consent order, a statement setting out the change in circumstances since the order was agreed or other circumstances justifying a review or re-hearing;
    5. you have the option of including a copy of the appellant’s skeleton argument (This is a written document where you set out why you think the decision of the magistrates should be overturned. It is best to try and be as concise as you can and write it in numbered paragraphs.);
    6. the written reasons for the magistrates decision;
    7. the application form;
    8. any application notice (or case management documentation) relevant to the subject of the appeal;
    9. any other documents which the appellant reasonably considers necessary to enable the appeal court to reach its decision on the hearing of the application on appeal; and
    10. such other documents as the court may direct.

You must then serve all of these documents on all of the parties within 7 days of serving them on the court.

The last bit of guidance I would give is that although it is a very emotional subject, and indeed will concern the welfare of your child, try and remain as calm as you can and focus on the argument you want the judge to adopt.

1 comment:

matt baker said...

This post is very useful. I was aware of some documents that i would need, such as the appelants notice and application forms. Are there any other additional ideas to help the process go smoothly?

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