I want to appeal or discharge the care order

I want to challenge the care order – Appeals and Discharge of order

If you want to challenge a placement or an adoption order, have a look at where we discuss placement and adoption orders, where there is some brief discussion of your options. It is very difficult to successfully oppose these orders. There is a useful article here by suesspicious minds. 

It is probably going to be difficult to get any help with paying for legal representation to make these applications; unlike the actual care proceedings there is no automatic legal aid. You may find this post helpful; What if I don’t have a Lawyer?

 

I am not happy with the care order

What’s the difference between appealing and applying to discharge an order?

We will deal first with the issue of appeals, and then consider applications to discharge the care order.

  • If you want to appeal against an order you are saying you think the order itself is wrong, it should not have been made and the judge got in wrong, either about the facts or the way he applied the law to the facts.
  • If you apply to discharge an order, you are saying that the reason why the order was made in the first place no longer applies so the order shouldn’t continue.

I want to appeal

After the final hearing has concluded the Judge will either read out his/her decision or provide you with a written judgment. The Magistrates must always produce written reasons for their decisions.

Can a Judge change his/her mind?

The Supreme Court held in the case of re K-L (Children) [2015] that judges have power to reverse their decisions at any time before the order is ‘drawn up’ (i.e. sealed with a court stamp). There does not need to be exceptional circumstances for a judge to do this; there is an overriding objective to deal with the case justly.

But if the Judge won’t change his/her judgment, you will have to consider an appeal.

As soon as you can after judgment

Immediately after judgment has been delivered, if there is anything you are not happy about or think the Judge has got wrong, you should bring it to his/her attention immediately. The Judge can make minor amendments there and then or provide further reasons if you are not sure why   he/she has made that decision. If you don’t alert the Judge to these issues quickly, you could find yourself criticised later on – as Arden LJ said in the case of Re T (Contact: Alienation: Permission to Appeal) [2002] EWCA Civ 1736:

It would be unsatisfactory to use an omission by a judge to deal with a point in a judgment as an application for appeal if the matter has not been brought to the judge’s attention when there was a ready opportunity to do so. Unnecessary costs and delay may result.

If it is something which can be corrected quickly – such as getting the spelling of a name wrong or recording an incorrect date – and it is not something which has a huge impact on the Judge’s decision, it can be corrected there and then. However, if you think there are much more serious problems with the judgment you may want to consider an appeal.

If you are legally represented, discuss this with your lawyer and see what he/she says about the prospects of appealing. Time limits are short so you need to move quickly.

How do I appeal against an order?

This can be quite complicated.

The ‘appeal court’ that will consider your application will depend on which kind of judge you want to appeal.  You will only go straight to the actual Court of Appeal if you want to appeal the decision of a Circuit Judge. See the judiciary.gov website for an explanation about the different kinds of Judges. A lot of care proceedings are heard in front of District Judges – any application for permission to appeal their decisions will go to the Circuit Judge.

The Court of Appeal operates under a different set of rules to that applying to the Family Court and the Family Division of the High Court – the Civil Procedure Rules (CPR) as opposed to the Family Procedure Rules (FPR). And the usual position is that hearings in the Court of Appeal are held in open court. See further this post from the Transparency Project – High Court appeals to be heard in open court?

See Part 30 of the Family Procedure Rules and Practice Direction 30A

As well as getting any necessary permission to appeal you will also need to consider the following important practical issues:

  • do you have or can you get a written note of the judgement and/or evidence given (a ‘transcript);
  • are you aware of the time limits and can you stick to them?  you can try to appeal later but there is no guarantee the court will allow this; its always best to get things in on time.
  • you will need to think about what you are going to put in writing about why you want to appeal.

Permission to appeal

If you are before the Magistrates, you don’t need permission to appeal. Your appeal will be heard before a Judge of Circuit Judge level or High Court level if its thought your appeal raises an important point of principle.

If you are in front of any other kind of judge such as a District Judge or a Circuit Judge you will need permission to appeal – either from the Judge at the final hearing or from the appeal court when you make your application. You should ask the Judge at the time for permission to appeal. If he/she refuses, you need to make an application for permission from the relevant appeal court.

There have been some important changes made to the Civil Procedure Rules which apply to permission to appeal in family cases.  The Civil Procedure (Amendment No.3) Rules 2016 come into force on the 3rd October 2016.  The relevant date to see if the new rules apply to your case is NOT the date of your judgment but the date of your notice to appeal.

The rules introduce a new Part 52. The rules have been changed to try and deal with the back log of work the Court of Appeal now faces, given the rise in litigants in person who are appealing. You used to have an automatic right to request an oral hearing for permission to appeal, if your first request in writing was rejected. This has now changed. Your application for permission to appeal will be decided on your written application unless the court decides this would not be fair, and it needs to hear further argument.

What is the test to decide if I will get permission to appeal?

Note the distinction between ‘first’ and ‘second’ appeals. Under Part 52.6, if this is your first appeal, permission to appeal will only be given where:

  • the court considers that the appeal would have a real prospect of success; or
  • there is some other compelling reason for the appeal to be heard.

The court can also limit the issues that are going to be heard on giving permission.

If you are now applying to the Court of Appeal for permission to make a ‘second appeal’ – that is, of a decision you have already appealed to another lower Judge, permission will only be given if the Court of Appeal decide that your appeal would:

  • have a real prospect of success; and
  • raise an important point of principle or practice; or
  • there is some other compelling reason for the Court of Appeal to hear it.

Applying for permission to appeal to a Circuit Judge or in the High Court.

You can request an oral hearing but the Judge dealing with your written application can decide that your application is totally without merit and can make an order preventing any further oral oral hearing.  See Part 52.4 (3).

Your only option would be to apply for judicial review of the Judge’s refusal to grant you permission to appeal, but the circumstances would need to be ‘exceptional’.

Do I need a transcript of the Judge’s decision or the evidence given at court?

The Judge’s decision

See paras 5.23 – 5.25 of the Practice Direction with regard to transcripts of the Judge’s decision.

If the court has officially recorded the judgment, you should send an approved copy of that transcript with the appellant’s notice (see below – basically, the document where you set out why you think your appeal should succeed).

If there is no officially recorded judgment, you can use the following documents:

  • Written judgments – where a decision is made by a lay justice or justices in the family court, a copy of the written reasons for the court’s decision.
  • Written reasons – in a magistrates’ court, a copy of the written reasons for the courts decision.
  • Note of judgment – when judgment was not officially recorded or made in writing a note of the judgment (agreed between the appellant’s and respondent’s advocates) should be submitted for approval to the judge whose decision is being appealed. If the parties cannot agree on a single note of the judgment, both versions should be provided to that judge with an explanatory letter. For the purpose of an application for permission to appeal the note need not be approved by the respondent or the lower court judge.
  • Advocates’ notes of judgments where the appellant is unrepresented – When the appellant was unrepresented in the lower court it is the duty of any advocate for the respondent to make the advocate’s note of judgment promptly available, free of charge to the appellant where there is no officially recorded judgment or if the court so directs. Where the appellant was represented in the lower court it is the duty of the appellant’s own former advocate to make that advocate’s note available in these circumstances. The appellant should submit the note of judgment to the appeal court.

What if I can’t get a transcript quickly enough?

If you can’t get hold of a transcript within the time limits for sending your appellant’s notice to the court, you will have to complete the appellant’s notice to the best of your ability on the basis of the information that you have got in front of you. You are allowed to make amendments later on if the court gives you permission. See rule 30.9 – Amendment of appeal notice. 

Transcripts of evidence

See para 5.31 -5.34 of the Practice Direction with regard to transcripts of the evidence.

If this is evidence that is relevant to the appeal you will need an official transcript of the relevant evidence. If there was no official recording, you will need a typed version of the Judge’s or magistrates’ clerk’s notes. If you can’t afford to pay for these notes to be transcribed the court can order that they are provided at the public expense. You should ask for this order when you ask for permission to appeal if you are worried about paying for the costs of a transcript. 

See also the case of Re W (Children) in 2014 where Jackson LJ commented:

From time to time when this court grants permission to appeal, it directs that the evidence of a particular witness be obtained. If the appeal concerns the adoption of children, it is by definition an urgent matter and the hearing will be listed at an early date. Indeed, as here, the court granting permission to appeal may direct an expedited hearing.

In such a case, the parties must use their best endeavours to obtain any transcript of evidence which is required as soon as possible. If, as here, the transcript cannot be obtained in time, then solicitors and counsel should co operate in producing a composite note of the relevant evidence.

Time limits are really important

21 days to appeal – Appellant’s notice Rule 30.4

You will have to send your appellant’s notice to the appeal court within 21 days of the date of decision you are appealing unless the first court decides you should do this more quickly, or gives you more time.

BUT if you are appealing against a case management decision or an order for an interim care/supervision order under section 38(1) of the Children Act 1989 you have only SEVEN DAYS.

You then have to send a copy of your appellant’s notice to the other parties in your case.

The Court of Appeal recently confirmed in Re H (Children) that it is ‘exceptional’ to get permission to appeal late given the importance of making speedy decisions in cases involving children.

What must I include in my appellants notice?

Rule 30.6 – your grounds of appeal; what are the reasons you say the judge got it wrong. Are you saying that the Judge ignored relevant evidence? Or relied on things that were untrue?

What can the appeal court do? Rule 30.11

Once you have got permission to appeal and made your application, what can you expect from the appeal court? There are a variety of possible outcomes. The appeal court could:

  • agree with the order of the first court; or
  • set aside or vary any order or judgment from the court below; or
  • Refer any application or issue for determination by lower court; or
  • Order a new hearing; or
  • Make orders for payment of interest; or
  • Make a costs order.

An appeal is limited to a review of the decision of the lower court UNLESS the appeal court decides the interests of justice require a re-hearing.

Can I bring any new evidence before the appeal court?

Generally, no. The appeal court will not be keen on hearing new evidence, either spoken or in writing  unless you have some very good reasons why that evidence hadn’t been available to the first court.

Permission to appeal is granted – Will my appeal be successful?

Rule 30.12 (3) of The Family Procedure Rules 2010 reads as follows: ‘The appeal court will allow an appeal where the decision of the lower court was:

  • (a) wrong; or
  • (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court’.

Thorpe LJ set out the ‘essential test’ in Re B (Appeal: Lack of Reasons) [2003] EWCA Civ 881:

….does the judgment sufficiently explain what the judge has found and what he has concluded as well as the process of reasoning by which he has arrived at his findings and then his conclusions.

The Supreme Court considered the nature of appeals against care orders in Re B in 2013. This is a very important decision in relation to the role of the appellate court in cases that involve the making of care orders.

The decision of a Judge as to whether or not the threshold is crossed in a particular case is an exercise of that judge’s discretion. The next decision is what kind of order should be made, once threshold is crossed. That is both an exercise of the judge’s discretion and imposes an obligation upon him or her to make a decision that is proportionate and thus compliant with Article 8 of the ECHR.

It was a unanimous decision that the test to be applied by the appeal court is whether or not the decision below was ‘wrong’.

For an example of where a Judge got it very, very wrong – by making final care orders at a Case Management hearing – see the case of Re S-W (Children) EWCA Civ 27 in 2015.

The Judge is likely to have got it wrong if he or she:

  • relied on something that was irrelevant;
  • failed to consider a relevant matter
  • made a mistake about the law;
  • applied the wrong principle;
  • failed to give adequate reasons for his/her decision.

Procedural irregularites

Even if the Judge’s decision was not considered ‘wrong’ the appeal court might be sufficiently concerned about ‘procedural irregularities’ – problems in the trial process, such as inexcusable delay –  that could make a decision unjust and thus lead to a successful appeal.  See MacFarlane LJ in A (A Child) 2013 at para 77:

Drawing matters together, whilst I do not conclude that the outcome ordered by the judge is, of itself, wrong and therefore to be set aside, I am sufficiently concerned about the process of these proceedings as a whole, which I have held has violated the Art 8 rights of both M and her father, and also by the deficits in the judge’s analysis which I have now identified, to conclude, in the words of CPR, r 52(11)(3), that the outcome is ‘unjust because of a serious procedural or other irregularity’. For the previous systemic failure to end in a hearing which itself was highly unsatisfactory and where the judge has failed to conduct a sufficiently thorough analysis, makes it almost inevitable that this court will consider that it has a duty to intervene with the aim of establishing an effective and full rehearing.

You should also keep in mind the following considerations:

  • The appeal court should NOT interfere with the first court’s decision, just because it would have made a different decision. It should only interfere if that decision is ‘wrong’.
  • The appeal court will also remind itself that the first judge had a significant advantage in that he/she got to see and hear the parties give evidence and is thus in a much better position than the appeal court to assess the strength of that evidence.
  • Just because a judgement is short doesn’t make it automatically suspect. The more experienced a judge, the more likely he or she can express the reasoning process shortly.

My appeal is successful – should the court order a re-hearing?

The case of B (A child) [2014] looked at the issue of whether or not a successful appeal should lead to a re-hearing or the appeal court substituting their own decision. The question is – can the appeal court put the mistake right? Or is the mistake too big and we need to start again? The court considered this issue at paras 29 -32 of the judgment:

I have come to the following conclusion about the question asked of us. On an appellate review the judge’s first task is to identify the error of fact, value judgment or law sufficient to permit the appellate court to interfere. In public law family proceedings there is always a value judgment to be performed which is the comparative welfare analysis and the proportionality evaluation of the interference that the proposed order represents and accordingly there is a review to be undertaken about whether that judgment is right or wrong. Armed with the error identified, the judge then has a discretionary decision to make whether to re-make the decision complained of or remit the proceedings for a re-hearing. The judge has the power to fill gaps in the reasoning of the first court and give additional reasons in the same way that is permitted to an appeal court when a Respondent’s Notice has been filed. In the exercise of its discretion the court must keep firmly in mind the procedural protections provided by the Rules and Practice Directions of both the appeal court and the first court so that the process which follows is procedurally regular, that is fair.
If in its consideration of the evidence that existed before the first court, any additional evidence that the appeal court gives permission to be adduced and the reasons of the first court, the appeal court decides that the error identified is sufficiently discrete that it can be corrected or the decision re-made without procedural irregularity then the appeal court may be able to rectify the error by a procedurally fair process leading to the same determination as the first court. In such a circumstance, the order remains the same, the reasoning leading to the order has been added to or re-formulated but based on the evidence that exists and the appeal would be properly dismissed.
If the appeal court is faced with a lack of reasoning it is unlikely that the process I have described will be appropriate, although it has to be borne in mind that the appeal court should look for substance not form and that the essence of the reasoning may be plainly obvious or be available from reading the judgment or reasons as a whole. If the question to be decided is a key question upon which the decision ultimately rests and that question has not been answered and in particular if evidence is missing or the credibility and reliability of witnesses already heard by the first court but not the appeal court is in issue, then it is likely that the proceedings will need to be remitted to be re-heard. If that re-hearing can be before the judge who has undertaken the appeal hearing, that judge needs to acknowledge that a full re-hearing is a separate process from the appeal and that the power to embark on the same is contingent upon the appeal being allowed, the orders of the first court being set aside and a direction being made for the re-hearing. In any event, the re-hearing may require further case management.
The two part consideration to be undertaken by a family appeal court is heavily fact dependent. I cannot stress enough that what might be appropriate in one appeal on one set of facts might be inappropriate in another. It would be unhelpful of this court to do other than to highlight the considerations that ought to be borne in mind.

There is a useful article about this case by suesspiciousminds here.

 

Discharge of the care order – My situation has changed

If some time has passed since the judgment – months, rather than weeks – and you think you can show that your situation has changed for the better, you can apply to discharge the care order.

Section 26 of the Children Act 1989 says there must be regular case reviews for all Looked After Children (the LAC Review) which will include getting the views of the parents and children. One item to be considered every six months is whether or not the LA should apply to the court for a discharge of the care order: see the Review of Children’s Cases Regulations 1991 (SI 1991 No. 895).

Every local authority must also establish a procedure for considering representations, including complaints, made to it by any child who is being looked after by it, or by his parents, about the discharge by the authority of its parental responsibilities for the child.

The application for discharge of a care order is dealt with at  section 39 of the Children Act 1989:

Discharge and variation etc. of care orders and supervision orders.

(1) A care order may be discharged by the court on the application of—
(a) any person who has parental responsibility for the child;
(b) the child himself; or
(c) the local authority designated by the order.
(2) A supervision order may be varied or discharged by the court on the application of—
(a) any person who has parental responsibility for the child;
(b) the child himself; or
(c) the supervisor.

If the court does not think your application has any merit, it can dismiss it quickly – see the case of A-Z v Birmingham City Council in 2013. The father had had no contact with any of his children for at least 18 months and the court concluded there was no prospect that their current placements would be disrupted.

See also the case of X (Discharge of care order [2014] EWFC.

 

Procedure to apply for a discharge of the care order

You will apply on Form C110A with copies for each respondent, which is every person you think has parental responsibility for the child under a child arrangements order before the care order was granted, the child, the parties to the original care proceedings. Other people must be given notice of the proceedings, including the LA who is providing accommodation for the child and anyone who is caring for the child at the time you make the application.

See also the FPR Practice Direction 5A and 12A.

On filing your application with the court, the Public Law Outline timetable starts running so the application must be completed in 26 weeks.

 

Recent Cases on discharging a care order

For a recent authority when the court looked at discharging a care order see X (Discharge of care order) [2014]. The Judge was very concerned in this case by the failures of the LA. The court emphasised that it was important to look at the question of whether or not it was proportionate for a care order to continue. Suesspiciousminds has commented on this case here.

 

Particular problems for litigants in person

Appealing as a litigant in person

It is difficult to get public funding to make an appeal and some people may have to consider making an application without a lawyer.  You may have to pay a fee to get the court to issue your application – there is information about this on the government website.

Also see their leaflet – Court and Tribunal Fees – Do I have to pay them?. You don’t have to pay if you are receiving the following benefits:

  • Income-based Jobseeker’s Allowance
  • Income-related Employment and Support Allowance
  • Income Support
  • Universal Credit with gross annual earnings of less than £6,000
  • State Pension Credit – Guarantee Credit
  • Scottish Civil Legal Aid (not Advice and Assistance or Advice by Way of Representation)

 

The courts are alive to the difficulties this may cause – see the case of  R (a Child) [2014]

6. This case is illustrative of an increasing problem faced by this court. More and more litigants appear in front of us in person. Where, as here, the appellant is unrepresented, this requires all those involved in the appeal process to take on burdens that they would not normally have to bear. The court office finds itself having to attempt to make sure that the parties to the litigation are notified of the appeal because litigants in person do not always know who should be served; the only respondent named by M here was LA. The bundles that the court requires in order to determine the appeal are often not provided by the litigant, or are incomplete, and proper papers have to be assembled by the court, not infrequently at the request of the judges allocated to hear the case when they embark upon their preparation for the hearing just days before it is due to start. The grounds of appeal that can properly be advanced have to be identified by the judge hearing the permission application and the arguments in support of them may have to be pinpointed by the court hearing the appeal.

7. The court has no extra resources to respond to these added challenges. It needs to be understood that the file from the lower court is not available to the appeal court which is dependent on the papers supplied for the appeal by the parties. If it is to be able to deal properly with an appeal in care proceedings, and to do so speedily (as most local authorities require so that undue delay is avoided for the children who are the subject of the proceedings), then local authorities will have to expect to assist by ensuring that the court is provided with appeal bundles. Three copies of the appeal bundles are normally required, unless the appeal is ordered to be heard by two judges in which case only two copies need be supplied. The bundles will often have to include the documentation that was available to the court below, although there can be appeals in which the issue is so discrete that a more limited selection of papers will suffice. It is so frequently the case that the papers supplied by the appellant are deficient that it should be standard practice for the local authority to take steps itself, well in advance of the hearing, to consider the appellant’s proposed bundle and, if it is deficient or apparently non-existent, to contact the court to see whether it is necessary to supply alternative or supplementary bundles.