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.
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:
The decision of the magistrates was wrong in law.
The decision of the magistrates was outside their
jurisdiction. (They did not have the legal power to make the order they
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
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:
Two additional copies of the appellants notice;
one copy of the appellant’s notice for each of the
one copy of the appellant’s skeleton argument for
each copy of the appellant’s notice that is filed;
a sealed or stamped copy of the order being
appealed or a copy of the notice making the order;
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;
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
A sealed or stamped copy of the appellant’s
a sealed or stamped copy of the order being
appealed, or a copy of the notice making an order;
any affidavit or witness statement filed in
support of any application included in the appellant’s notice;
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;
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.);
the written reasons for the magistrates decision;
the application form;
any application notice (or case management
documentation) relevant to the subject of the appeal;
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
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.