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?

CherryThing 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.

  • Tim Haines says:

    There are a number of additional considerations which are not mentioned here. The first is where your appeal will be heard. Appeals from magistrates and district judges are heard by a circuit judge in the same court. (You can tell the difference by how your judge is addressed in court: if (s)he’s “sir” or “ma’am” then they’re a district judge, if it’s “your honour” then they’re a circuit judge. If there are three of them, they are magistrates.) Appeals from a decision from a circuit judge (“HHJ”) go to the Court of Appeal in London. After that, cases go to the Supreme Court. Very few cases get to the Supreme Court, because of the filter known as “permission to appeal”.

    “Permission to appeal” (or “leave to appeal”) means that you must get an preliminary evaluation of your case before an appeal can be heard in full. Permission to appeal is the filter which the court system uses to cut out cases which a judge feels have no prospect of success. If you fail to get permission to appeal, then that’s pretty much the end of the road in the UK court system (though you can still go to ECHR). If you do get permission and your full appeal is unsuccessful, you can take it up to the next level of appeal. As you go to further appeals, the process becomes more and more complex, as you are arguing against the last decision which was made.

    Legal aid is rarely available for permission to appeal cases. If you are successful in getting permission, then the legal aid usually kicks in again. Permission to appeal is an area where the services of McKenzie friends who are experienced in the appeals process can be invaluable. Quality McKenzie friends can work with Counsel at full appeal to give continuity. For example, my wife, Julie (“Mrs Haines”), and I worked with Janet Bazeley QC on W (Children) 2015 EWCA Civ 403. This was the first case in legal history where a Forced Adoption was successfully appealed and was largely achieved by us, as McKenzie friends. We obtained the Permission to Appeal and then asked Ms Bazeley on board. Ms Bazeley ran our arguments for the full appeal, though it must be said that she did make substantial and excellent contributions of her own. She represented the father in the final hearing, in front of Munby P and two others, and Julie assisted the mother.

    The 21 day limit really should not be considered as a barrier to an appeal. Whilst it is clearly best to get your appeal filed as soon as possible, if it is even a few weeks “out of time” that should not be a problem. In fact, the N161 form asks whether you are appealing out of time, so clearly, the court expects this. Your reason for not filing within time can be as simple as the fact that it has taken you some length of time to find suitable assistance with your appeal. However, as weeks turn into months, you are more likely to encounter difficulties. A strong appeal is more likely to be heard well out of time than a weak appeal. Often it is a two-stage process. The judge will consider your application for the appeal to be heard out of time before moving on to the substantive case.

    Solicitors and barristers often say to their clients that “You can’t appeal”. This is NEVER true! What they mean is that they can’t find any grounds for appeal and legal aid won’t pay for an appeal. Almost all our appeal cases come to us after being rejected by the solicitors and barristers that ran the case in the lower court.

    As the post above says, it’s not about a re-run of your case. The point of an appeal is to show that the judge was wrong in law when deciding your case in the lower court. In fact, the most likely outcome of a successful family law appeal is that the case will be sent back down to the lower court to be re-heard by another judge. That is when you DO get a second bite of the cherry. It’s unlikely that the appeal judge will simply release children from care or re-allocate them to grandparents, etc., though we have had this happen.

    At the end of the day, you only need ONE successful ground of appeal. Don’t pad your appeal out with weak arguments, else your opponents and the judge will focus on the weak arguments and completely ignore the strong ones!

    As you can see, the appeals process is indeed complex, and very difficult to undertake on your own without the assistance of someone experienced in the field. Will you win? “Probably not” is what we say to all our clients. This holds not just for the best McKenzie friends but even top QCs. The courts don’t like to admit that they have made a mistake, and the system is stacked against parents. Many parents do like to appeal, even though they are aware that their prospects of success are slim, because they want to be satisfied that they have followed every possible avenue in their case and have not given up. People don’t like being left in a position of “What would have happened if…?”

    Julie and I take on many cases through Justice for Families, but this is confined to public law (social services care and adoption cases). We may also consider private law matters on a case by case basis.

  • Mike Hatch says:

    My appeal case is due to be heard on Monday (4 days from now) I am unable to afford to pay for a McKenzie friend or any other support, therefore unfortunately I must fight this fight alone.

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