An appeal has a number of hurdles

How do I appeal?

A better question to start with is almost always `Should I appeal?’

An appeal has a number of hurdlesIt’s entirely natural to wonder what options are open to you if a court orders something you don’t like and/or want. Particularly when you have just walked out of a hearing and the adrenaline is still pumping through your veins.

So asking the court to come up with a different decision is understandable.

But let’s be clear.

An appeal isn’t a legal way of saying to the court `Can you make a different decision cos I don’t like the one you’ve already made?’

Appeals are not a second bite of the cherry.

There is a very easy initial way of seeing if you should make an application to do so: If your first question is Can we appeal?’ and not `We should appeal because of XYZ?’ you are already on shaky ground.

Even in many situations when an appeal would succeed it’s not worth doing so. These include scenarios including:

  1. The court agreeing that the court that made the order was wrong but that it would have made the same decision anyway (this happens).
  2. When there is an ongoing case and your appeal is liable to adversely affect it (such as slowing it down).
  3. If there are other options.

But I also want to point out that there are times where you should absolutely think about appealing. Carry on reading for this!

Appeals are deliberately hard. Namely because if they weren’t it’d encourage anyone who didn’t like an order to nip down to the court office after the hearing to put the forms in. And because of this they almost always fail.

So when DO I appeal?

`Grounds for appeal’ is the operative phrase here. What are your reasons for appealing in the first place? As I’ve said too many times now not liking an order is not a reason. If you have boxticked the above then you are ready to move on to the next step.

An appeal takes work

A castle wall and an appeal are both deliberately difficult to overcomeMany litigants in person seem to think that submitting the right form to the court (that’s a N161 or a FP161 if it’s going to the High Court) is all that is needed. Put the form in. Convince the judge to make a different decision. Job done.

It’s not like that. Part 30 of the Family Procedure Rules explains what is needed.

Along with the right form (above) and sending it to the right court you’ll need:

  1. A Practice Direction 27A compliant bundle.
  2. Your grounds for appeal. Which can be that:
    1. The court has erred in law.
    2. The decision is outside the range of reasonable disagreement and is therefore manifestly wrong.
    3. There was a serious procedural or other irregularity thar renders the decision unjust.

Errors in law include the court:

  1. Not correctly applying statutory tests in the relevant Act.
  2. Failing to take account of relevant factors, or further or alternatively to have regard to irrelevant factors.
  3. Omitting to give proper reasons.

These grounds need to be set out in your skeleton argument, along with case law to support them.

The next step for an appeal

Once you have submitted these to the court (with your fee of course…) you will either receive a date of a hearing to discuss the appeal or a rejection of it; if you have just filled in the N161 or FP161 it may well be the thanks but no thanks letter.

Otherwise it’ll be time to explain to the court why your appeal has merit. This hearing is not an opportunity to discuss what order you would like the court to make with regarding to contact, residence, adoption, etc. The court can’t and won’t do it at this hearing.

You’re there purely to convince the court why it was wrong to make the order it did. If the court agrees you have a point there will be another hearing (effectively a trial to establish if your appeal does have merit).

All going well a subsequent hearing will address the matter in hand.

Even if you are right sometimes it isn’t worth making an appeal

There are a few great reasons why even if you categorically know you are right and would definitely win an appeal it still isn’t worth doing so.

For example…you could be told by the appeal court that there was a serious procedural error made by the court – but the same decision would have been made even so. Or that you weren’t give reasons for the decisions (judgements are read out to ensure this box is ticked) – but again the same decision would have been made.

It could be that by the time your cast-iron case for an appeal is made there has been a subsequent hearing and whatever it is you are unhappy about has been rendered meaningless. Or that it merely demonstrates the vexatious nature the other party is alleging you have is correct.

As always, look at the big picture here – it is the end result that counts and not what happens along the way.

But don’t be under any illusions that appeals are easy or just another chance to get what you want. They’re not.

Appeals: A second bite of the cherry?

What can you do when a hearing hasn’t gone your way? And you can’t live with the result? It’s easy to think an appeal is the best way to try for a different outcome.

After all…you’ve got nothing to lose and everything to gain, right?

Thing is – that’s not what appeals are for. They’re not a second bite of the cherry; they’re not a legal way of saying to the man or lady behind the big desk `Oh, go on sir/madam – change your mind for me!’ Appeals are quite rightly difficult. Otherwise everyone would be doing them wouldn’t they?

An appeal isn’t about asking the court to re-run the previous hearing, be it for contact, residence, adoption or anything else. Go to an appeal hearing and ask the court to change the contact pattern, reverse the adoption order, etc. and you’ll be met by a blank stare. You’re there to convince the court it has made an error in law – nothing else.

If you manage to do that you’ll get your chance to do that at a subsequent hearing.

It’s important to know this. Because without a game plan all you’re going to do is waste money, paper and a few ink cartridges on something that isn’t going to get out of the traps.

Your first thought should be when considering an appeal is Has the court made an error in law?’ and not `Can I persuade the court to come up with a different decision?’ You are going to need to fill in the right form (an N161), pay the right fee, get a bundle  (with the right documents) to the right court and do all of this within 21 days of the order (although this can be extended in certain circumstances).

You will need to be clear about what your grounds of appeal are.

If you don’t know what the above means and you still want to appeal that should ring an alarm bell in your head and you should seriously consider not bothering.

Appeals are deliberately difficult. Your one can be dismissed at the first hurdle. Or heard in court…and then dismissed. Or heard in court and the court decides that while your argument has merit the court would have made the same decision…and then dismissed. Either way the whole process is very slow. Even by court standards.

In many cases it quite honestly isn’t worth bothering.

But don’t let this bring you down. Depending on what is you’re seeking to achieve in the long run (as always think of the big picture)  it may well be worth trying a different tack. A fresh application for more contact. An application for a variation or enforcement. A different take on things if your case is still open.

Don’t appeal just because you don’t like the decision. You could be making more work and problems than you already have.

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