Tag Archives: appeal

Can you challenge a finding of fact in a family court?

This is a post by Sarah Phillimore

TLDR; yes – but its difficult. Don’t rely on being able to challenge a finding after it is made – it is far, far better to challenge it at the time of your court case, if you have all the available evidence.

However, if you discover evidence after the hearing that shows the findings have been made on an inaccurate basis, it is clear that there is a mechanism to challenge this.

So anyone who asserts the the Judge ‘got it wrong’ at their hearing and they have the evidence to prove this – ask yourself (and them) why they haven’t asked the court to look at this.

in cases involving children, it is clearly very important that decisions about their welfare are based on sound factual findings. See W (Children), Re [2009] EWCA Civ 59. But what does a parent do if they think the finding of fact was made on the wrong basis?

Section 31F(6) of the Matrimonial and Family Proceedings Act 1984 was inserted by the Crime and Courts Act 2013, section 17(6), Schedule 10, paragraph 1 and came into force on 22nd April 2014. It gives the Family Court the power to “vary, suspend, rescind or revive any order made by it”. it’s an interesting provision as that undermines the principle in relation to finality of judgments and orders – but which itself is in tension with the principle that decisions about children, which have such long lasting consequences, should be made on the soundest footing.

in the case of Re E (Children: Re-opening Findings of Fact) [2019] EWCA Civ 1447 the Court of Appeal held that the Family Court had the statutory power under the Matrimonial and Family Proceedings Act 1984 s.31F(6) to review its findings of fact at any time.

In this case, the children were removed from the mother’s care, after the youngest was found to have cigarette burns on her arm. The mother said it was an accident but her accounts were inconsistent. In the criminal investigation, the police medical evidence supported the mother and said she offered a plausible explanation for accidental burns. The mother then got permission to appeal out of time on the basis of that report.

The Court of Appeal found that a finding of fact was not “an order” in the strict sense of s.31F(6), but it could be appealed if it was integral to the order on which it was based and therefore came within the scope of section 31F(6). A finding of fact that the mother deliberately hurt her child was clearly integral to the order made to remove them.

Nor did section 31F(6) express that it was limited to a particular time after the hearing, given that findings of fact often have longstanding consequences for children and their families.

The court refused to follow G (A Child), Re [2014] EWCA Civ 1365 where the judge commented that when a sealed order, after a fact finding hearing, is challenged then that challenge must be to the appeal court and the mother should not have been allowed to apply to the first court to re-open factual issues.

However, the Court of Appeal in Re E dismissed the mother’s appeal and found she should apply directly to the trial court – the trial court was more likely to be in a better position than any appeal court to assess the true significance of the further evidence and was likely to be able to deal with the application more quickly and cheaply.

Applying to the first court to look at its findings again.

So if a parent wants to review a finding of fact the approach is set out in Re ZZ, (Children) (Care Proceedings: Review of Findings) [2014] EWFC 9;[2015] 1WLR 95.This case adopted a three part test first set out by Charles J in Birmingham City Council v H and Others [2005] EWHC 2885 (Fam):

the court must consider whether it will permit any challenge to the earlier findings
it then has to decide the extent of the investigation and evidence heard by the review
then it hears the review and decides whether or not the earlier findings still stand.

The court will not get beyond the first stage unless there is some ‘real reason; to believe that the earlier findings can be challenged. ‘Mere speculation and hope’ are not enough. The over arching question for the court will be whether there was any reason to think that a rehearing would result in a different finding.

See also CTD (A Child: Rehearing) [2020] EWCA Civ 1316 (14 October 2020)

Appealing to another court to about the findings

Or a parent could appeal based on further evidence but this might need an application to extend time, as applications to appeal have strict time limits. Pursuant to CPR r.52.21(3) an appeal to the Court of Appeal would be allowed where the lower court decision was either wrong or unjust because of a serious irregularity.

Under r.52.21(2) any evidence not before the lower court would not be admitted without permission, looking at criteria in in Ladd v Marshall [1954] 1 W.L.R. 1489

that it hadn’t been possible to get the evidence for use at the first hearing
if heard, the evidence would have had an important impact on the case
and the evidence was credible.

An appeal was allowed against a judge’s decision in Re A (no 2) (children: findings of fact) [2019] EWCA Civ 1947 where the Judge came up with his own ‘theory of the case’ that had not been argued before him and which was not supported by the evidence.

I don’t want my child to be adopted

What can I do?

it will depend at what stage of the proceedings you have reached and what orders have already been made. A child can only be adopted when three orders have been made – a care order, a placement order and finally, an adoption order. Care and placement orders are usually made at the same time.

A care order allows the State to decide where your child should live and who spends time with him or her.
A placement order allows the State to put your child with a family that may decide to adopt him or her.
An adoption order confirms that this family is now the legal family and the birth parents no longer have any legal connection to their child.

So which situation are you in? This post will discuss only the LAST TWO. If you want to challenge a care order – see this post.

Parents are currently in care proceedings and no final order has been made It is really important that parents argue their case in the care proceedings while they are happening – you need to engage with the case against you at the time as it may be too late to do anything to change the situation once a care order is made.
Final care order made but no placement order. If a placement order hasn’t been made yet, you may be able to appeal against the care order or apply to discharge it.
Final care order and placement order made – Parents can apply for leave to revoke a placement order under section 24 of the ACA 2002, IF:
- their child hasn’t yet been placed for adoption; and
- they can show a ‘change of circumstances’ since the placement order was made.
- The form to make an application to revoke a placement order is here.
- The court has confirmed that a Judge should look at the welfare checklists in both the Children Act and the Adoption and Children Acts when making decisions about these cases
Potential adoptive parents have applied for an adoption order – Parents can apply for permission to contest the making of an adoption order under section 47(7) of the ACA 2002 but only if they can show a ‘change of circumstances’.
The adoption order has been made – can I overturn it? – this is rare but possible. See discussion below.

Challenging an application for an adoption order

Don’t waste time

Remember – UK law is compatible with the ECHR

It is always better to make your challenges and objections during the care proceedings. It is essential to challenge a care order as soon as possible if you do not consider it was validly made – it is too late to wait until the time that applications are made to apply for adoption.

Don’t waste time arguing that UK law is not compliant with international law. In the case of G (A Child) [2017] EWCA Civ 2638 (08 November 2017) the father wanted the court to declare that the Adoption and Children Act 2002 was not compatible with the European Convention on Human Rights. The Court of Appeal referred to Re CB (A Child) (No. 2) (Adoption Proceedings: Vienna Convention) [2016] 1 FLR 1286 in which Sir James Munby President said at paragraph 83:

“The second point is that, whatever the concerns that are expressed elsewhere in Europe, there can be no suggestion that, in this regard, the domestic law of England and Wales is incompatible with the UK’s international obligations or, specifically, with its obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. There is nothing in the Strasburg jurisprudence to suggest that our domestic law is, in this regard, incompatible with the Convention. For example, there is nothing in the various non-consensual adoption cases in which a challenge has been mounted to suggest that our system is, as such, Convention non-compliant.”

If you are arguing about the care proceedings when faced with adoption order – you’ve already lost

There is a useful and clear discussion about the process in the case of A and F (children) [2015] where a mother argued that her children should not be adopted but this argument was based on an assertion that the care orders should not have been made in the first place. Therefore, she did not accept that any criticism could be made of her parenting and she was unable to engage with the essential steps to challenge her children’s adoption – that she must show ‘a change of circumstances’

As the Judge commented at para 26 of his judgment:

Indeed, the majority of the mother’s statement is concerned with the repetition and correction of perceived past wrongs sustained by her. This was also the position with regard to her oral submissions. This means that inevitably she does not accept as a “starting point” District Judge Shaw’s decision nor his findings. As a matter of logic, therefore, she finds it impossible to address the issue of “changes in circumstances” because broadly her parenting circumstances, when the children were removed, were perfectly acceptable and therefore no change is required. Accordingly, an intellectual impasse results.

So what do you have to do?

Step One: establish a change of circumstances. The court has already decided by making a final care order that the parent has caused or is likely to cause a child significant harm. Therefore the parent must show the court what is different NOW. This is discussed in more detail below;
Step Two: convince the court it is right to give permission to argue against an adoption order being made. This means that the court will look at all the relevant issues in the case and think about what the impact would be on the children. The children’s welfare is the most important consideration for the court. If the parent doesn’t succeed in getting permission, the matter ends there.
Step Three: Persuade the court to refuse an adoption order IF a parent is given permission to argue against the making of an adoption order, they will have to persuade the court to reverse the direction in which the children’s lives have travelled since the Care and Placement proceedings. Obviously, the longer the children have been in their potential adoptive placement, the harder this will be.

Although the courts try to separate out the different questions, to make it easier to analyse the issues, it is clear that each question has the potential to be significantly wrapped up in the other questions. For example, the ‘prospect of success’ the court is looking at refers to your prospect of success in challenging the order, NOT your prospects of success in getting your child home.

However, if you have very little chance of persuading the court that the child should come home, that issue is certainly going to be on the court’s mind. It is very difficult to successfully challenge placement or adoption orders, as by the time such challenge is made the child has been living away from the parents for many months, even years and the court is going be worried about the impact on the child of possibly another move from a home where they may now be settled.

In Re L [2014] 2FLR 913 at paragraph 45, Lady Justice Black said this:

“When a judge considers a parent’s prospect of success for the purposes of section 47(5), he is doing the best he can to forecast what decision the judge hearing the adoption application is going to make having the child’s welfare throughout his life as his paramount consideration. What is ultimately going to be relevant to the decision whether to grant the adoption order or not must therefore also be material at the leave stage.”

STEP ONE – what does ‘change in circumstances’ mean?

It’s a matter of fact and it has to be relevant. Case law gives us the following principles :

The test should not be so difficult that it rules everyone out – parents shouldn’t be discouraged from trying to improve their lives.
The changes must be relevant to the question of whether or not leave should be granted – for e.g. if the worry was originally that you drink too much, have you stopped or cut down?
The changes are not confined to those of a birth parent, but they may include changes occurring in the child’s life (see Re T [2014] EWCA (Civ) 1369).
The necessary change in circumstances … does not have to be “significant”; the question is whether it is “of a nature and degree sufficient, on the facts of the particular case, to open the door to the exercise of the judicial discretion to permit the parents to defend the adoption proceedings”: Re P (Adoption: Leave Provisions) [2007] EWCA 616, [2007] para 30 – discussed in Re T [2014] in context of applying to revoke a placement order.

There is a useful article here by suesspiciousminds which considers the relevant case law in this area, and in particular the case of The Borough of Poole v W [2014] EWHC 1777. The Judge concluded at paragraph 25 of his judgement that the parents could not succeed, despite making considerable changes to their lives:

I have considered this case with the most anxious care, considering how much is at stake, both for parents and prospective adopters who happily all have a real understanding of each other’s predicaments. However, above all what is at stake for SR? There can be no blame attached to any of the four adults for why we have all ended up where we have. Nevertheless, a decision of profound significance has to be made. In the end, I have reached a clear conclusion that there is only one route which will sufficiently safeguard the welfare of SR and that is the route of adoption.

My real concerns about SR’s ability to survive the process of rehabilitation and the parents’ ability to sustain her care, whatever her reactions throughout her childhood, when seen in the context of their fragility and of the consequences to SR of a failure of rehabilitation and the need to then start all over again. All those matters when drawn together, in my judgment, require that adoption be provided as the way of securing her welfare and therefore require that the court dispenses with the parents’ consent. In making the order which, in my judgment, promotes the welfare of SR, I fully recognise the grief of the parents who do not share my view and I recognise that I have no comfort to offer them, beyond letterbox contact. If ever an example was needed of how legitimate and heartfelt aspirations of parents can be trumped by the welfare needs of the child, this surely is it.

For an example of a case where a mother succeeded in appealing against the initial refusal to allow her to argue against a placement order, see the case of G (A Child) [2015] EWCA Civ 119, discussed in this post by suesspiciousminds. The Court of Appeal agreed that a change to the child’s circumstances could also be relevant:

The “change in circumstances” specified in section 24(3) of the 2002 Act is not confined to the parent’s own circumstances. Depending upon the facts of the case, the child/ren’s circumstances may themselves have changed in the interim, not least by reason of the thwarted ambitions on the part of the local authority to place them for adoption in a timely fashion. I would regard it as unlikely for there to be many situations where the change in the child’s circumstances alone would be sufficient to open the gateway under section 24(2) and (3) and I do not suggest that there needs to be an in-depth analysis of the child/ren’s welfare needs at the first stage, which are more aptly considered at the second , but I cannot see how a court is able to disregard any changes in the child/ren’s circumstances, good or bad, if it is charged with evaluating the sufficiency of the nature and degree of the parent’s change of circumstances.

The case of P (A Child) [2018] EWCA Civ 1483 (28 June 2018) allowed a mother’s appeal against the refusal to grant her an adjournment before making a placement order. Although there had been long standing concerns about her alcoholism, she had developed considerable insight and made significant progress – she had done ‘all’ that could be expected of her. The Court of Appeal rejected the suggestion that a six month adjournment served ‘no purpose’ given that the plan for a 6 month old baby was adoption.

STEP TWO: If there is a change of circumstances, should the court give you permission to challenge the adoption order?

In relation to Step two this an issue of judicial evaluation or discretion which means that different judges can and do make different decisions but could not necessarily be challenged on appeal. ‘Exercising a discretion’ means you are making your own value judgment and there is usually a pretty wide range of possible outcomes that would be accepted. Provided of course that the Judge has applied the correct law and facts.

The parent must have ‘solid grounds’ for making the application. Paragraph 74(i) to (x) of Re B-S identifies the features to be weighed in the balance.

Prospect of success here relates to the prospect of resisting the making of an adoption order, not the prospect of ultimately having the child restored to the parent’s care.
The issues of ‘change in circumstances’ and ‘solid grounds for seeking leave’ are treated as two separate issues in order to analyse them BUT in reality they are inter-linked and one may follow the other
If the Judge finds a change of circumstances AND solid grounds for seeking permission, the Judge must then consider child’s welfare very carefully.
The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the “last resort” and only permissible if “nothing else will do” and that, as Lord Neuberger emphasised, the child’s interests include being brought up by the parents or wider family unless the overriding requirements of the child’s welfare make that not possible.
But, the child’s welfare is paramount.
To find out what the child’s welfare needs, the judge must take into account ‘all the negatives and the positives, all the pros and cons, of each of the two options, that is, either giving or refusing the parent leave to oppose. The use of Thorpe LJ’s ‘balance sheet’ is to be encouraged.
The court needs proper evidence, but this doesn’t always have to be evidence from people speaking to the court. Often applications for leave can be fairly dealt with on written evidence and submissions.
As a general proposition, the greater the positive change in circumstances and the more solid the parent’s grounds for seeking leave to oppose, the more significant must be the detrimental impact on the child if the court is going to refuse to give them permission to challenge the adoption order.
The fact a child is now living with the prospective adopters or that a long time has passed, cannot determine the matter.
BUT the older the child and the longer he/she has been living with the prospective adoptions, the worse it is likely to be to disturb that.
The court should not attach too much weight to any argument that the proceedings are having an adverse impact on the prospective adopters – but this isn’t a trivial point and judges must try to minimise this impact by robust case management.
The judge must always bear in mind that what is paramount in every adoption case is the welfare of the child “throughout his life”.

Given modern expectation of life, this means that, with a young child, one is looking far ahead into a very distant future – upwards of eighty or even ninety years. Against this perspective, judges must be careful not to attach undue weight to the short term consequences for the child if leave to oppose is given. In this as in other contexts, judges should be guided by what Sir Thomas Bingham MR said in Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124, 129, that “the court should take a medium-term and long-term view of the child’s development and not accord excessive weight to what appear likely to be short-term or transient problems.” That was said in the context of contact but it has a much wider resonance: Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233, [2013] 1 FLR 677, para 26.

The court will be well aware of the seriousness of adoption and the decision of the Supreme Court in the case of Re B [2013] 1WLR 1911.

See also W (A Child: Leave To Oppose Adoption) [2020] EWCA Civ 16 (21 January 2020) where the appeal court agreed the parents should be given permission to argue against the making of an adoption order.

STEP THREE: Will the court reverse the ‘direction of travel’ for the child and refuse to make an adoption order?

It is quite rare for the court to refuse to make an adoption order. One example of such a case is A and B v Rotherham Metropolitan Borough Council [2014] which is the first since the 2002 Adoption Act. The court removed the child from the home of the potential adoptive parents – where he was settled – to live with his paternal aunt. It is clear that the court must consider the child’s welfare throughout his life – as the Judge commented here, this could mean 80 years or more.

The Judge commented at paragraph 95:

This case clearly requires taking both a short term and a long term view. C is currently very well placed with “perfect adopters”. They are a well trained couple with whom he is very well attached. He is of mixed race. They are both white and share with him that half of his ethnicity. A and B are “tried and tested” as has been said. His aunt and the principal members of the paternal family are black and share with him that half of his ethnicity. The aunt is a single person. She has not been “tried and tested” as a carer for C, but she has been observed as a carer of her own child, G, and thoroughly assessed as entirely suitable to care long term for C. There would be likely to be short, and possibly long term harm if he now moves from A and B to the aunt, but that is mitigated by his embedded security and attachments with A and B, and can be further mitigated by specialist training and support for the aunt, which she will gladly accept. The unquantifiable but potentially considerable advantage of a move to the aunt is the bridge to the paternal original family.

It is my firm judgment and view that it is positively better for C not to be adopted but to move to the aunt. In any event, I certainly do not consider that making an adoption order would be better for C than not doing so. Accordingly I must, as I do, determine not to make an adoption order and must dismiss the adoption application. Pursuant to section 24(4) of the Act, I exercise a discretion to revoke the placement order made in respect of the child on 2 August 2013.

The Judge had this to say about the ‘nothing else will do’ test at paragraph 15:

With so many Article 8 rights engaged and in competition, it does not seem to me to be helpful or necessary in the present case to add a gloss to section 1 of only making an adoption order if “nothing else will do”… Rather, I should simply make the welfare of the child throughout his life the paramount consideration; consider and have regard to all the relevant matters listed in section 1(4) and any other relevant matters; and make an adoption order if, but only if, doing so “would be better for the child than not doing so”, as section 1(6) requires.
If the balance of factors comes down against making an adoption order, then clearly I should not make one. If they are so evenly balanced that it is not possible to say that making an adoption order would be “better” for him than not doing so, then I should not do so. If, however, the balance does come down clearly in favour of making an adoption order, then, in the circumstances of this case, I should make one. I do not propose to add some additional hurdle or test of “nothing else will do”.

The decision of the Court of Appeal in July 2016 in W (A Child) [2016] EWCA Civ 793 dealt explicitly with four very important questions:

The approach to be taken in determining a child’s long-term welfare once the child has become fully settled in a prospective adoptive home and, late in the day, a viable family placement is identified;
The application of the Supreme Court judgment in Re B [2013] UKSC 33 (“nothing else will do”) in that context;
Whether the individuals whose relationship with a child falls to be considered under Adoption and Children Act 2002, s 1(4)(f) is limited to blood relatives or should include the prospective adopters;
Whether it is necessary for a judge expressly to undertake an evaluation in the context of the Human Rights Act l998 in such circumstances and, if so, which rights are engaged.

The court said this about the ‘nothing else will do’ test at paragraph 68 of their judgment:

Since the phrase “nothing else will do” was first coined in the context of public law orders for the protection of children by the Supreme Court in Re B, judges in both the High Court and Court of Appeal have cautioned professionals and courts to ensure that the phrase is applied so that it is tied to the welfare of the child as described by Baroness Hale in paragraph 215 of her judgment:
“We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.”
The phrase is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child’s welfare. Used properly, as Baroness Hale explained, the phrase “nothing else will do” is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the ECHR and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime (ACA 2002 s 1). The phrase “nothing else will do” is not some sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons (see Re B-S [2013] EWCA Civ 1146, Re R [2014] EWCA Civ 715 and other cases).

The court was clear that there is NO ‘presumption’ or ‘right’ for a child to be brought up by natural family and that those assessing the case had wrongly believed there was – thus the focus on the impact of removing A from the only parents she had known for 2 years, was not properly considered.

The issue is only and always the child’s welfare. The matter was returned to another judge for a re-hearing. It will be interesting to know the outcome.

Time Limits for Appeals.

For more detailed discussion of the rules that apply to time limits, see this post about appealing against a care order. It is very important that you tell the court that you want to appeal and why you want to appeal within 21 days of the decision you want to challenge.

The court have considered appeals out of time in the case of re H (Children) [2015] and emphasised how important it is to stick to time limits in children cases. Although the father in this case was allowed to appeal some 8 months after the first decision, the court emphasised that this was ‘exceptional’. See paras 33 and 34 of the judgment:

33.As a matter of law, if no notice of appeal is lodged during the 21 days permitted for the filing of a notice, a local authority should be entitled to regard any final care order and order authorising placement for adoption as valid authority to proceed with the task of placing the child for adoption. If that process has subsequently to be put on hold in order to allow a late application for permission to appeal to be determined, the impact upon the welfare of the child (particularly where prospective adopters who have been chosen may be deterred from proceeding) is also too plain to contemplate.

34. The problem that I have described is a necessary difficulty that arises from our system which contemplates that, notwithstanding the expiry of the 21 day period for lodging a notice of appeal, the court may, where to do so is justified, permit an appeal to proceed out of time. There will thus inevitably be a period after a late application for permission to appeal where time is taken to process the application before it is determined. Whilst accepting the inevitability of this source of, in some cases, highly adverse impact on the welfare of a child, every effort should be made to avoid its occurrence. One strategy which would seek to avoid the problem would be for the judge in every case where a final care and placement for adoption order is made to spell out to the parties the need to file any notice of appeal within 21 days and for the resulting court order to record on its face that that information was given to the parties by the judge. Secondly, this court and any appellate judge in the Family Court, must continue to strive to process any application for permission to appeal in a public law child case with the utmost efficiency. Finally, the fact that an application for permission to appeal which relates to a child in public law procedure is out of time should be regarded as a very significant matter when deciding whether to grant ‘relief from sanctions’ or an extension of time for appealing.

The adoption order has been made – can I challenge it?

This is very rare – but possible. However, those cases where adoption orders have been overturned appear to rest on procedural flaws in the application, not on the merits or otherwise of the adoption. The Websters for example, were denied the opportunity to challenge the adoption of their children on the basis that the children had lived apart from them for so long, it would not be in the children’s interests to remove them from their adoptive homes.

The case of, ZH v HS & others [2019] EWHC 2190, gives a clear example of how mistakes made in how the adoption order was applied for and made, were so serious that they undermined the whole basis for the order and it was set aside.

T and her mother ZH tried to come to the UK from Somalia to claim asylum .T ended up with the maternal aunt and uncle who asked social workers to help them regularise T’s status with them. They didn’t get legal advice but went to a CAB and filled in the forms to make an application to adopt T, saying ZH was missing – as they didn’t know where she was. T’s mother then managed to enter the UK two years later. She was clearly out of time to appeal against the making of an adoption order so she applied under the court’s inherent jurisidiction to set it aside. Every one agreed by the time this got to court in 2019, this was the right thing to do and T should be looked after by her mother.

The court was very critical about how the adoption order ever came to be made, calling the process ‘flawed’ and ‘replete with errors and omissions’, not least the correct notice wasn’t given to the LA and there were no checks on the uncle and aunt and no guardian appointed for T.

It is indeed really worrying to think that such an application got through a court process without anyone apparently noticing such significant procedural failings and there is no surprise that the High Court found these errors were so serious they tainted the whole process; the adoption order could not stand.

However, we are waiting for the Court of Appeal’s full judgment on another case where a mother has attempted to use the inherent jurisdiction to over turn an adoption order – her appeal was dismissed in June 2021 and it will be interesting to read the full reasons.

See further Julie Doughty’s discussion at The Transparency Project, ‘Can an adoption order be undone?’

I have taken the photograph above from this blog post – How does it feel to be adopted?

I don’t agree with the care order – what can I do? 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?

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

If you don’t agree with an order the court has made you basically have two options:

you can apply to APPEAL the order – i.e. you think it was wrong; the judge got the facts or the law wrong
you can apply to DISCHARGE the order – i.e. it might have been the right order at that particular time but things are different now.

I will look at appeals against the care order first, then how to apply to discharge a care order.

However, it is difficult to appeal against decisions in the family court. This because there is almost always no one single ‘right’ answer and one judge might disagree with the decision of another judge without being able to say that the first judge ‘got it wrong’. See for example what Ward J said In Re N (Residence: Hopeless Appeals):

… It may be an irony that the more finely balanced the decision, and the more acutely the judge has agonised over his decision, the less prospect there is of the decision being successfully appealed. The understandable reaction of the disappointed party is that the judge has got it wrong; therein lies the fallacy. That fallacy was exposed by the House of Lords in G v G (Minors) (Custody Appeal) [1985] FLR 894. The fallacy is this: in a case involving the welfare of a child there is often no right answer. There cannot be an absolute of right where the choice is between two solutions, each of which is imperfect…

If you are going to embark upon an appeal you will have to be very careful to identify what the judge got wrong, rather than simply say that you don’t agree with what the judge did.

Appealing against the care order

Particular problems for litigants 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]

The court office will have to make sure all the other parties know about the appeal because litigants in person do not always know who should be served
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.
The court has no extra resources to respond to these added challenges.

Litigants in person therefore need to be aware that the papers the first judge looked at are not in front of the appeal court – they need the appellant to supply the relevant paperwork! It may be that 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.

Permission to appeal

You will probably have to ask for permission to appeal before any Judge will hear your arguments about the actual appeal

The test for whether permission to appeal should be granted is whether there is a real prospect of success or some other compelling reason as to why permission should be granted. (Rule 30(3) FPR 2010). A real prospect of success means one that is realistic rather than fanciful and not one which has a greater than 50/50 chance of success. Per Moor J in Av v VM [2012] 2 FLR 709. This test has been confirmed in R (A Child) [2019] EWCA Civ 895 (24 May 2019)

The decision of the Judge may only be interfered with if the Judge was wrong or if the decision was unjust due to a serious procedural or other irregularity in the court below. (Rule 30.12(3) FPR 2010.)

In NG v SG 2012 1 FLR 1211, Mostyn J said a court would only be able to say that a fact finder has got the wrong answer if a) the conclusion was demonstrably against the weight of the evidence; and b) the decision-making process can be identified as plainly defective such that it can be said that the findings in question are unsafe.

What you need to do as soon as you get the judgment

make minor corrections immediately
ask the Judge to consider any ‘material commission’
ask for permission and think about getting a transcript of the judgment

You need to understand what the decision is; some judges will give you a written judgment, others will read it out. Get the best note you can as sometimes there are problems/delays getting a transcript. Sometimes Judges tell you their decision at the end of a case, other times the Judge may need to get you back into court after a few days/weeks, particularly if the matter was complicated or there was a lot of evidence.

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.

It is important to raise ‘material omissions’ BEFORE making any application to appeal. The Judge should be given the opportunity to consider any such claimed commission before you rely on it as a ground of appeal. 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, if you don’t bring something to the judge’s attention as soon as you can, you might find yourself punished with a costs order later on. 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).

If the Judge isn’t willing to make changes OR the changes made don’t reassure you, ask that Judge for permission to appeal his/her judgment. The Judge is likely to refuse but you can make another application for permission at the next court up if you do decide to appeal, and you may be criticised for not raising it with the first Judge. If you don’t have a written judgment, ask for the time limits to appeal to start running from the date that you get the transcript. Ask the Judge if he/she will order the transcript as necessary so you don’t have to pay, but if the judge doesn’t agree you need to appeal, this will probably be unlikely. The relevant form to apply for a transcript is here.

You will need to act quickly. You have 21 days to appeal and if you go over that time you will have to show good reason why you should be given longer to appeal. I will look at the issue of transcripts and time limits in more detail below.

Judge’s should be asked – within reason – to clarify their judgments if it is not clear what they have decided. The Court of Appeal has given guidance on what is an acceptable way to seek clarification. This is not an opportunity to get the Judge to make different findings. See YM (Care Proceedings) (Clarification of Reasons) [2024] EWCA Civ 71, 2024

Transcripts – and what to do if you don’t have one.

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

All court proceedings should be recorded, although sometimes the equipment fails and there are often difficulties/delays in getting hold of the transcript. So you may need to have some other options. 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 FPR 30.9 – Amendment of appeal notice.

If you can’t get the transcript in time, you can use the following documents:

Written judgments – where a decision is made by the magistrates (‘lay justices’), they must type up the reasons for their decision.
Note of judgment – when judgment was not officially recorded or made in writing a note of the judgment can be submitted for approval to the judge whose decision is being appealed. Try and get your note agreed with the other side. 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. If you had a lawyer, get your lawyer’s notes; they have a professional duty to give these to you. If you were a litigant in person but the other side(s) had a lawyer, those lawyers are under a duty to make their note of the judgment available to you, free of charge if there is no official recording or if the court tells them to. 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.

Transcripts of evidence

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

It maybe that its not just the note of judgment that you need, but also a transcript of the evidence, if there is dispute/disagreement about what the evidence actually was and what decision the judge made about it.. 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 must file with the court an Appellant’s Notice within 21 days from the date the order was made. If the order was a case management order or an interim care or supervision order the time limit is 7 days. For an Appellant’s Notice and further information about how to appeal go to the HMCTS Form Finder at http://hmctsformfinder.justice.gov.uk/HMCTS/FormFinder.do and enter ‘Appellant’s Notice’ in the ‘Words from Title’ field.

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

You then have to send a copy of your appellant’s notice to the other parties in your case. Rule 30.6 tells you what you have to put in your appellant’s notice – basically 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?

I have decided I want to appeal.

Where do I send the Appellant’s Notice?

If you are appealing an order made by magistrates or a district judge the Appellant’s Notice must be sent to the family court where the order was made. If you want to appeal a decision of a circuit judge or recorder in a public law case (including adoption) the Appellant’s Notice must be sent to the Court of Appeal Civil Appeals Office (Royal Courts of Justice, Room E307, Strand, London WC2A 2LL; email: [email protected]).

What court do I go to?

The actual process of appealing can be quite complicated. You probably won’t go straight to the actual ‘Court of Appeal’. The ‘appeal court’ that will consider your application will depend on which judge made the first decision in your case and the rules about this changed in 2014.

You need to look carefully at the relevant rules and practice direction as they are long and I will only attempt to summarise the most important bits here. See Part 30 of the Family Procedure Rules and Practice Direction 30A

BUT BEWARE THESE APPEAR NOT TO HAVE BEEN UPDATED – the routes to appeal are wrong for e.g.

The routes of appeal from one level of judge to another have been revised with effect from 22 April 2014 to take account of the new Family Court. The Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2014 amends the Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2011 to provide that an appeal from a decision of a court officer, justices’ clerk, justice(s) of the peace, or (deputy) district judge, including a district judge (magistrates’ courts), will lie to a judge of the Family Court.

ROUTES OF APPEAL AS FROM 22 APRIL 2014

Table from Hershman and McFarlane Children Law and Practice; uptodate as of January 2018

The provisions of the amended AJA 1999 (DA)(FP)O 2011 are supplemented by the Family Court (Composition and Distribution of Business) Rules 2014. The Rules provide that appeals within the Family Court that would usually be heard by a circuit judge, may go before a High Court judge if this is the best use of local judicial resources.

Decision of judge sitting in the family court	Permission generally required (subject to exception in rules of court, for example, no permission required to appeal against a committal order)	Appeal to
1 A bench of –	No	a judge of circuit judge level sitting in the family court;
two or three lay magistrates; or a lay justice		a judge of High Court judge level sitting in the family court where a Designated Family Judge or a judge of High Court Judge level considers that the appeal would raise an important point of principle or practice.
		(NB a judge of High Court judge level may hear the appeal in interests of effective and efficient use of local judicial resource and the resource of the High Court bench)
2 A judge of district judge level (except the Senior District Judge of the Family Division or a District Judge (PRFD) in proceedings for a financial remedy)	Yes	As above
3 District Judge (PRFD) in proceedings for financial remedy	Yes	Judge of High Court judge level sitting in the family court
4 Senior District Judge of the Family Division in proceedings for financial remedy	Yes	Judge of High Court judge level sitting in the family court
4A Circuit judge or Recorder, except where paragraph 5 of this table applies.	Yes	High Court Judge (sitting in the High Court)
5 Circuit judge or Recorder, where the appeal is from:(a) a decision or order in proceedings under –(i) Part 4 or 5 of, or paragraph 19(1) of Schedule 2 to, the Children Act 1989; or(ii) the Adoption and Children Act 2002;(b) a decision or order in exercise of the court’s jurisdiction in relation to contempt of court, where that decision or order was made in, or in connection with, proceedings of a type referred to in sub-paragraph (a); or(c) a decision or order made on appeal to the family court.	Yes	Court of Appeal
6 Costs Judge	Yes	Judge of High Court judge level sitting in the family court
7 Judge of High Court judge level	Yes	Court of Appeal
8. Any other judge of the family court not referred to in paragraphs 1 to 7 of this table.	Yes	Court of Appeal

The Court of Appeal operates under a similar but different set of rules – the Civil Procedure Rules (CPR) as opposed to the Family Procedure Rules (FPR). The usual position is that hearings in the Court of Appeal are held in open court, unlike the vast majority of court hearings involving children. See further this post from the Transparency Project – High Court appeals to be heard in open court?

The Court of Appeal is facing a huge back log of work and there has been an increase in the number of litigants in person so in 2016 there was a change to the court rules to try and deal with this. The rules introduce a new Part 52. 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.

How do I get permission to appeal?

The role of the appellate court and its approach to applications for permission to appeal are determined by the provisions of the Family Procedure Rules 2010 (“FPR”) and by case law.

The test for granting permission is set out in FPR rule 30.3(7) which provides that permission will where: a) there is a real (realistic as opposed to fanciful) prospect of success or

b) there is some other compelling reason to hear the appeal.

FPR rule 30.12(3) provides that an appeal may be allowed where the decision was wrong or unjust for procedural irregularity.

The court will apply the principles set out by Lord Hoffman in Piglowska v Piglowski [1999] 1 WLR 1360.

The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the Judge gave in this case. These reasons should be read on the assumption that, unless he has demonstrated the contrary, the Judge knew how he should perform his functions and which matters he should take into account

The Court of Appeal held in Re R (A Child) [2019] EWCA Civ 895 “The test for the grant of permission to appeal on an application to the Court of Appeal or to the High Court or Family Court under the first limb of the relevant sub-rule is that the appeal would have a real prospect of success”.

If permission to appeal was refused by the Judge who made the first decision, your first step is to get the appeal court to give you permission. It maybe that your appeal will be listed to be heard immediately after the application for permission, if that is successful.

Note the distinction between ‘first’ and ‘second’ appeals. Under Part 52.6 of the CPR – mirrored in FPR rule 30.3 (7) – 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.

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 – i.e. where you get to make your arguments in person before the Judge. However, 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 hearing. See FPR rule 30.3 (5A).

The court will consider the Court of Appeal decision in R (Wasif) v Secretary of State for the Home Department [2016] 1 WLR 2793. No Judge should certify an application as ‘totally without merit’ unless he or she is confident after careful consideration that the case truly is bound to fail. He or she will no doubt have in mind the seriousness of the issue and the consequences of his decision in the particular case.

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

If your application for permission by way of written application is refused but not dismissed as without merit, FPR 30.5(5) and (6) allow you to challenge that decision as long as you ask for another hearing in writing within 7 days of notice that permission was refused. However, this rule does NOT apply to any appeals to the Court of Appeal.

If I am applying for permission to appeal, does this put the original order ‘on hold’?

FPR rule 30.8 states that unless the appeal court or the lower court orders otherwise, an appeal does not operate as a stay of any order or decision of the lower court. In N (Children: Interim Order/Stay) [2020] EWCA Civ 1070 the Court of Appeal gave guidance on the granting of short-term stays in family proceedings. At paragraph 36 the court stated that a short-term stay to enable an application to be considered by an appeal court before an order is put into effect is to be distinguished from a stay pending a decision on permission to appeal or a stay pending appeal.

Applications for stays while waiting for a decision, will be considered in accordance with the principles set out in Hammond Suddards Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065. The court has a discretion whether or not to grant a stay. Whether the court should exercise its discretion to grant a stay will depend upon all the circumstances of the case, but the essential question is about the risk of injustice to either party if a stay is – or isn’t – granted.

By contrast, a short-term stay is a purely practical remedy. The correct approach for the court to take to was described by Wilson LJ in Re A (A Child) [2007] EWCA 899 at [27],where he confirmed that the judge should always give serious consideration to allowing an Applicant “a narrow opportunity” to approach this court so that the opportunity for a successful appeal is not unfairly eroded.

If the Judge decides to grant a short term stay, this is done by directing a short period of time before the order takes effect, for example until the end of the next working day. If the Judge isn’t minded to allow a stay, the person seeking the stay could make an urgent telephone application to the appellate court.

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.

Fresh evidence will not be admitted without an order to that effect. Fresh evidence may be evidence of events since the decision under appeal or evidence relating to matters before the hearing that is subject to an appeal, but which was not available at the hearing in the lower court.

There is no specific requirement to be satisfied in respect of an application to admit fresh evidence. The court will consider the requirements set out in Ladd v Marshall (1954) FLR Rep 422 in a case where the evidence was in existence at the time of the hearing in the lower court.

The evidence could not have been obtained with reasonable diligence at trial
evidence must be such that, if given, it would probably have an important influence on the result of the case; although it need not be decisive; and
The evidence must be such as would presumably be believed, or in other words, it must be apparently credible although it need not be uncontroversial.

The recent case of A & I (Children: Appeal: Relocation & Joint Lives-With Orders: Fresh Evidence), Re [2024] EWCH 1824 sets out a useful summary of the relevant law in this area.

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’.For example:a) an error of law has been made;b) a conclusion on the facts which was not open to the judge on the evidence has been reached: Royal Bank of Scotland v Carlyle [2015] UKSC 13, 2015 SC (UKSC) 93.c) the judge has clearly failed to give due weight to some very significant matter or has clearly given undue weight to some matter: B-v-B (Residence Orders: Reasons for Decision) [1997] 2 FLR 602.
d) a process has been adopted which is procedurally irregular and unfair to an extent that it renders the decision unjust: Re S-W (Care Proceedings: Case Management Hearing) [2015] 2 FLR 136.

e) a discretion has been exercised in a way which was outside the parameters within which reasonable disagreement is possible: G v G (Minors: Custody Appeal) [1985] FLR 894.

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 and held

The judge’s first task on appeal is to identify the error of fact, value judgment or law which is bad enough to allow the appellate court to interfere.
In care proceedings, it will always be a value judgment about the child’s welfare and whether or not the decision appealed against was a proportionate response; so the appeal judge needs to review whether that decision was right or wrong.
Once the judge has identified the error, its up to the judge whether or not to make another decision or to send it back for another hearing before a different judge.
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 the appeal judge 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 correct the error and support the first order – i.e. decide that the right decision had been made, just for the wrong reasons. This may be the right thing to do when the first judge’s reasoning process was not clearly set out in the judgment.
BUT 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.

Case law on discharging care orders

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. 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.

The case of TT (Children) [2021] EWCA Civ 742 (20 May 2021) looked at the test to be applied to discharge a care order and said at para 37:

Further, at the level of principle, the fundamental test to be applied to an application under s. 39, and to other applications under the Act, is, as I have said, the welfare principle and not a test of necessity or some other test. The attempt in this and other cases to shift the focus away from welfare is neither helpful nor necessary. A proper welfare analysis and proportionality crosscheck is a dependable bulwark against any tendency towards social engineering.

The judgment of Mostyn J in the case of GM v Carmarthenshire County Council & Anor [2018] EWFC 36 (06 June 2018) – where he commented that if this mother’s application didn’t succeed then section 39 should be scrapped and cast doubt on the validity of attachment theory – has been criticised by the Court of Appeal in TT (Children) above, so treat with caution.

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.

EDIT 24th January 2019 there appears to be considerable confusion about whether or not C110A IS the right form. One parent contacts me to say that no one can clarify if she is required to fill in a C1 a C100 OR C110A. After pleas for clarification via Twitter, five lawyers have opined it is C110A; but a very respected child protection lawyer responds that it is in fact C1 and C110A is used by those who wish to apply for an EPO. I think sadly all I can say is – watch this space. But it clearly isn’t acceptable that so much confusion exists about such a fundamental matter.

Edit 20th February 2019 – the parent in question applied using the C110A which the court accepted. So use this form or ask the court office to clarify which one they want you to use! For further discussion see this post.

Response to Commentators #4

Don’t sacrifice justice on the altar of speed

This is written by Sarah Phillimore, a family law barrister in response to a comment from FASSIT who said:

I recollect this site lambasting our group for the following comment: Fassit are finding that social workers are removing hundreds of children from innocent parents each year through sheer incompetence and organisational failure what could best be described as blatant discrepancies between the evidence presented at Court by expert witnesses (social services; health; education etc.) and the actual events or material facts of the case..”
Well now you can lambast the High Court Judges as well who said today that Judges and social workers have been conspiring to remove children unjustly from their parents.
Read more: From the Daily Mail

This Daily Mail article is a response to the recent decision on appeal in the case of Re NL (A Child) heard on 28th January 2014 by Mrs Justice Pauffley in the High Court.

The Daily Mail appear to share the view of FASSIT and John Hemming that this is yet more evidence of a network of corruption that taints the entire system.

The President of the Family Division has made it clear that all care practitioners should read this judgment. It is clearly an important case. But does it support any of the conspiracy theories?

What happened?

This case involved a mother who gave birth to her eighth child in October 2013. She had a very sad and troubled background over 14 years, involving drink, drugs and violence. She had seven older children and she was not able to care for any of them.

In August the mother went to a specialist unit, which offers a therapeutic community to parents who have become dependent on drugs and alcohol. The unit’s aim is to try and keep families together.

The mother did well in her first few weeks in the unit and successfully completed a detox. When her baby was born he did not show any signs that he was affected by his mother’s previous drug use. The hospital where the mother gave birth had no concerns about her parenting.

In October the LA issued an application for a care order. It was clear they were relying on the mother’s very difficult past and their allegation that she had addressed her drug problems very late in the day.

The case came for its first hearing in the Magistrates court on 1^st November 2013. The Magistrates made an interim care order and the baby went to foster care. Unsurprisingly, the mother objected to this and another hearing was listed on November 7th where more evidence could be available.

At that hearing the Magistrates heard evidence over the phone from a Dr. Van Rooyen, a chartered clinical psychologist, who was very negative about the mother and her ability to make and sustain changes to her lifestyle.

The Magistrates did not agree to reunite mother and baby and she appealed, arguing essentially that the decision was disproportionate – her baby would be safe with her at the unit while she continued to engage with work that might make her able to parent her son in the community at some point.

The LA and the Guardian did not agree that there had been any procedural or other irregularity and the Magistrates had carried out a proper balancing exercise and made a proportionate decision.

The Role of the Magistrates

Some further explanation of the role of the Magistrates will be useful at this point. Magistrates are volunteers; they do not have legal qualifications, they get some training and are assisted by legal advisers in court. Unlike other judges in family proceedings they therefore have to provide written ‘facts and reasons’ to support decisions they make about children. Sometimes this can take a long time – I have been at Magistrates courts until 8 or 9pm on numerous occasions – and a practice has developed whereby the Magistrates ask the lawyers to help them and speed up the process by writing a document which can be used as agreed ‘facts and reasons’.

As long as everyone has input into this document and it is agreed, this can be a sensible approach to limit the amount of time parents have to spend waiting at court.

Revised Guidance to the Magistrates

N.B. After some debate amongst practitioners as to whether or not this case applied to ALL hearings before the magistrates or only those where the parties wanted to argue about what order was the right one, the President of the Family Division confirmed on March 3rd 2014 that there are NO circumstances where is is permissible for the parties to contribute to the writing of facts and reasons.

This revised guidance was issued and approved by the President of the Family Division

A) Public Law

Under no circumstances should the local authority or any other party to the proceedings be involved in drafting Justices’ written Reasons. This prohibition applies irrespective of whether orders are said to be agreed or ‘not opposed.’

Henceforth, the court should never ask any party to supply draft Reasons or suggest that a draft be circulated amongst or consulted upon by the parties.

The practice of inviting parties to submit their own position statements in which they may set out analyses of the facts as well as their contentions in relation to resulting orders is unobjectionable.

It is entirely permissible for Justices’ Reasons to include references to documents filed by the parties – for example position statements, case summaries and chronologies. As appropriate, parts may be adopted e.g. ‘The background facts of the case are as set out in the case summary supplied by Miss A on behalf of X County Council’.

In all cases, as part of the case management process, the parties should provide written details of the agreed issues as well as those which are in dispute. It is acceptable and often helpful to record that information in the Justices’ Reasons.

Templates and / or pro forma Facts and Reasons documents may be used so long as they are created by the Justices in consultation with their Legal Adviser. If a template or pro forma is employed, the Justices must ensure that (a) case specific detail is incorporated to explain the key aspects of their decision and (b) they alone determine the content. Examples of key decisions recorded upon a template will be, how, if at all, the threshold criteria are established; and whether upon consideration of a child’s welfare interests, he should remain with or be separated from his parents at any stage of the proceedings.

The detail and length of the Reasons document will vary according to the complexity of the case; the stage reached in the proceedings and whether any of the facts, or the order sought, are disputed. Where all or some aspects of the case are contested, the competing arguments and the reasons for preferring a particular course should be given.

In every case, even where the order is said to be agreed or where there is no active opposition, there is still a judicial task to perform. Justices must ensure not only that justice is done but also that it is seen to be done.

The Appeal hearing on 28^th January 2014

There were obviously very serious problems in this case that led to Mrs. Justice Pauffley allowing the mother’s appeal and reuniting her with her son in the unit:

An expert being asked to prepare crucial report in very tight timeframe and without meeting the mother
Sending documents to the court without input from the other parties
Magistrates relying on ‘facts and reasons’ drafted by someone else
It took almost three months before the mother’s appeal against the orders in November could be heard

Lets look at these in turn.

Experts who report too quickly and don’t meet the parents.

The Judge said:

It simply cannot be right, fair or reasonable to commission an expert to provide what may turn out to be the pivotal evidence justifying separation of a neonate from his mother in the way that happened here.

It surprises and alarms me that Dr. van Rooyen was asked, and was prepared, to provide a report during the course of a single working day, a terrifyingly tight timeframe, and on the basis of papers supplemented by a telephone conversation with a LA professional who had never met the mother. I struggle to understand how Dr. van Rooyen’s apparently firm opinions, adverse to the mother, could have been formed given the complete absence of any kind of discussion with her or, indeed, any communication with [the unit – who were positive about the mother].

Sending documents to the court and not the other parties

The court relying on facts and reasons they didn’t draft.

With regard to the first hearing on 1st November, the LA lawyer wrote and emailed the ‘facts and reasons’ document before the hearing. The mother’s lawyer had no input into this document and was simply given a hard copy outside court on the morning of the hearing.

The document was then amended and included a reference to the expert’s report, which had been obtained only the day before and is discussed above. However, it did not contain any reference to the relevant law applying to removal at an interim stage

See our post about interim removal – what does it mean and how does it happen?

The Judge was told that this was ‘local practice’ and the Magistrates court expected every LA to provide draft ‘Facts and Reasons’ for every hearing in care proceedings. These documents were not routinely circulated to other parties.

Breach of Article 6 ECHR

The Judge was clear that this was an unacceptable breach of Article 6 of the ECHR, which provides for the right to a fair trial.

She said at paragraph 65:

Whilst I might be able to understand why such methods may have been developed, I am profoundly alarmed by their existence. Informal inquiries reveal, anecdotally, that the practices I have described are not confined to this are but are widespread across the country.

And further at paragraph 67:

Seemingly, there were process failures in this case, which significantly interfered with the most basic requirements for openness and transparency. There was, apparently, an established but largely clandestine arrangement between the LA and the court, which, to my mind, has considerable repercussions for justice and, equally importantly, the perception that justice will be done. It is fundamental that nothing is sent to the judge by one party unless it is copied simultaneously to ever other party

Equally and just as importantly, it is difficult to view the Justices as having been independent and impartial if, as happened here, they simply adopted the LA’s analysis of what their Findings and Reasons might comprise.

Lengthy delay in listing the appeal.

The Judge said at paragraph 81:

Three things should be emphasized. Firstly, appeals from interim care orders where separation has been sanctioned are amongst the most urgent of all public law hearings; time is of the essence and the court must do its utmost to list such appeals as a matter of urgency. By that I mean within days or at most a very few weeks. Second, that listing for the convenience of Counsel, whilst desirable, should not be a factor leading to a hearing date later than the court can accommodate. Third that the guardian’s ability to attend in person at the appeal hearing is of minor significance when weighed against the requirement for an early hearing’

Conclusions

This case went badly wrong and the Judge’s criticisms are well deserved. The removal of the mother’s baby on November 1^st then became solidified as the ‘right thing’ by the second hearing on November 7^th, the Magistrates even going so far as to say the baby might suffer disruption being removed from foster carers where he had lived for just one week!

The Judge commented at paragraph 55 of her judgment:

This case provides a good example of how once separation has occurred there can be a certain inevitability that it will be perpetuated. It is often and rightly said that the decisions taken about placement at the outset of public law proceedings are amongst the most significant. They can be and often are the most difficult. All the ore reason, I would say, for immense trouble to be taken so as to ensure those decisions are based upon good evidence and fully justified. Anything less would be to ignore that a child, as the result of what occurs at the beginning of proceedings, may be denied the opportunity, ultimately, of remaining within his natural family.

It was clear that the LA had ‘given up’ on the mother by August 2013 in light of her bleak previous history and had probably decided by then that they would seek removal of the baby once he was born.

But is this further example of systemic corruption in the family court system? I don’t think so. It is a horrible example of sloppy practice and a vivid illustration of something that often happens in these cases – professionals make a reasonable decision about the ‘likely outcome’ of a case but in so doing then lose sight of the need to constantly respect and observe due process.

Or, in other words, just because you are now dealing with the 8^th child of a mother with very serious problems who has had all previous children removed from her care, you cannot for this reason alone fail to respect and apply due process and the requirements of the law.

There is a need in ALL cases to act openly and fairly at all times and to remember the positive obligations imposed on the State by Article 8 and to consider how to support the family to remain together.

Underpinning this jettison of good practice was clearly a fear that unless people acted speedily, the case would fall outside the very strict 26-week timetable which now operates in care proceedings.

Mrs. Justice Pauflley rejected this, loud and clear, stating that ‘Justice must never be sacrificed on the altar of speed’.

She cited Re B-S (Children) [2013] EWCA Civ 1146 at paragraph 38 of her judgment.

‘Critical to the success of the reforms is robust judicial case management from the outset of every care case. Case management judges must be astute to ensure that the directions they give are apt to the task and also to ensure that their directions are complied with. Never is this more important than in cases where the LA’s plan envisages adoption. If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied’.

I do not think this case ‘proves’ that systemic corruption and state sanctioned baby stealing exist. It is unfortunate that once again the Daily Mail chooses to report matters of such importance in such a ham fisted and hysterical way.

It is however a very sobering reminder of how professionals must always be on guard not to slip into sloppy thinking and over reliance on past history, however bleak it may seem.

If FASSIT and others reject this analysis I hope they will at least accept that the clear and uncompromising words of Mrs. Justice Pauffley show that the tentacles of corruption have yet to reach the judiciary of the High Court.

What further debate could we be having?

We do need to stop wasting time over allegations of systemic corruption and look at the real issues these cases throw up. If we didn’t have the Magistrates as volunteer Judges who don’t require a big fat salary or even bigger judicial pension, the whole family justice system would grind to a halt. But the responsibility of decison making in these kind of cases is massive – are we giving our Magistrates enough support? Are we expecting too much of them?

The clarification on 3rd March 2014 from the President that there are NO circumstances in which any party to proceedings may assist in drafting the Facts and Reasons, even where everyone is agreed and happy to do this, is a departure from what has been usual practice for many years. We will have to wait and see what the consequences of this will be.

Why does it take so long to list further hearings, particularly appeals? Is there really no money in the pot for more judges and more available court time so we can react with speed and urgency when it’s needed?