Permission to appeal — When a judge issues a direction or decision that you believe is contrary to the applicable law, the only option open to you is to make a formal appeal.
To be clear, you cannot issue an appeal because you dislike a judicial decision.
You can only appeal if (for example) —
In children-related matters, the primarily laws applicable are contained within the following pieces of legislation:
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 usually heard by district judges (DJ) if the order you wish to appeal was made by a justices legal adviser and family magistrates or circuit judges (HHJ) if the order being appealed was made by a district judge.
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 Court. You will need to use form N161.
Appeals against circuit judges orders are made to the family division of the high court.
Unless the judge has set a specific time limit on the order, as a general rule, you must appeal within 21 days of the 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 appealing, you must first apply for formal permission to appeal.
Cases originating before family magistrates and justices legal advisers do not require permission to appeal. Automatic right of appeal will be heard by a district or higher judge upon application.
Permission to appeal is not the same as succeeding upon appeal.
Some appeals must be delivered within seven days of the relevant hearing.
If no time has been specified, the time limit to appeal 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, known as case management decisions on paper, appeals must be filed within seven days of the order date.
Official information from HMCTS here.
What is needed for the appeal?
Grounds of appeal
Remember, you are appealing a mistake by the judge or magistrate. 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 position statement.
Instead, you are giving short, bullet-point-style reasons.
Grounds should ideally take up no more than two sides of A4 paper.
E.g. The judge erred by not following Practice Direction 12J in the full knowledge that domestic abuse was identified as a significant factor in the case.
Grounds of appeal must be filed simultaneously as the relevant form.
The skeleton argument picks up each of your grounds of appeal. It expands them into more detail, including citations to the particular law or secondary legislation you believe the judge has got wrong.
It would help if you had some case law (relevant authorities) available to support your argument.
Case law means previous decisions made by the Appeal Courts similar to your case and/or issues.
An excellent resource to search for case law is Bailii.
Another good resource is The Custody Minefield.
Your skeleton argument must be filed within 21 days of filing the relevant form and grounds of appeal.
The principal reason skeleton arguments are not filed simultaneously is that, in most cases, a hearing transcript is needed to highlight the mistakes made by the judge.
Transcripts of hearings
It is illegal to make a recording of a court hearing.
Instead, if you need to review what was said in a hearing, you must apply to the court for an official transcript.
Remember, a transcript is the only way to 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 ten 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 can narrow down the elements of the hearing to an approximate time, this will help save some cost.
A note about case law
Litigants-in-person (LiP) and counsel prepare grounds and arguments very differently.
Counsel better understands the relevant authorities in former cases, which might support your argument.
Whereas LiPs tend to cherry-pick paragraphs from case law that best suit the points of law they are trying to make.
Not all cases are considered relevant authorities so be careful what you pick.
We regularly tweet about the most recent cases that go through the family court appeals system and we would encourage you to follow us and scroll through our tweets to find helpful case law may be relevant to the issues upon which you are basing your appeal.
Not all cases have similar enough features to make the case law applied relevant.
So my advice to researchers is to read the full judgement in every instance. (Be warned they can be a very long read!)
Be sure the case law you are quoting from has enough similarities to make it relevant to your purpose.
And when submitting skeleton arguments, ensure that you extract the full judgements as a separate PDF bundle of documents. This assists the court in reviewing your case law citations.
You do not need to be legally qualified, use a solicitor, or take a barrister with you to file 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, of the amount of bad advice on social media. McKenzie Law Partners have reviewed several 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
If you are filing permission to appeal, it costs around £215 (see the HMCTS website for updated filing fees). 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, suppose your permission to appeal application is successful, and you move forward to the official appeal stage — if you lose your appeal, you will likely face a costs order application against you. It can be costly if the other party is well represented.
The appeal itself
At the permission to appeal stage, you must convince the judge that your case has a realistic prospect of success. Your application must be considered to be at least 50% made out. And it must not be fanciful or frivolous.