It will come as little surprise that judges’ decisions are often questioned. A spouse may feel that the financial settlement was unfair, or a parent may believe they deserve more time with their children. Feeling like an injustice has been done is understandably very stressful and can lead some people to question the fairness of the family law system.
While I would argue against those who blame the system itself for incorrect decisions, of course judges do sometimes make mistakes. They are only human, after all.
If you genuinely believe that a judge has made a mistake in law, you can try and appeal. However, there are rules to the process you must follow which are set out in the Family Procedure Rules 2010 or the Civil Procedure Rules, depending on the level at which the original decision was made. The sections of these rules which relates to the appeal process – Part 30 of the Family Procedure Rules and Part 52 of the Civil Procedure Rules – set out the procedure to be followed. They are designed to weed out frivolous cases. After all, if simply not liking a judge’s decision was all that was necessary to launch an appeal, there would be no end of them.
First of all, you need to know which court you should appeal to. This depends on the level of the judge who made the original order and you must be careful that you lodge your appeal notice with the correct court.
Timing is also important. Applications for appeal must be launched within a set amount of time. For both County Court and High Court rulings alike, the time limit is 21 days, unless a shorter timeframe is set out in the original order. If you do not begin proceedings within this timeframe, you may not be allowed to continue. If you do not lodge your appeal within the timeframe but still believe your case has merit you may be able to apply for permission to appeal ‘out of time’ but will need to provide a thorough explanation for the delay. Even then, there is no guarantee that the court will accept your reasons and grant you permission.
Permission to appeal
If you begin the process within the allotted time, there is still no guarantee that your appeal will automatically be allowed to proceed. You must first receive permission to appeal from the court.
In order for this to happen, the court must be satisfied that your appeal has “a real prospect of success” or that there is “some other compelling reason why the appeal should be heard”. An appeal will have no chance of success whatsoever unless the person who is applying – the appellant – can demonstrate that the original judge on their case was plainly wrong under the law. This is no easy feat. If a judge rejects your application to appeal, you can ask the court to list a hearing to determine the issue.
The judge hearing the application for permission to appeal has several options available to him or her. They can grant or refuse the application for permission. Alternatively, the judge can list the subject for an ‘ex parte hearing’ – which does not require every party to be present, or an ‘inter parte hearing’ – which does. If your application for permission is successful at this stage, your case will be listed for a formal appeal hearing.
The appeal hearing
It is important to note that the role of an appeal judge is normally limited to a review of the original decision, unless the facts of the case require a re-hearing. The appeal court will not generally hear any new evidence from the parties that was not heard by the lower court. The appeal will be allowed if the court decides the original decision was wrong or unjust because of a “serious procedural or other irregularity in the proceedings in the lower court” – that is to say, if something major went wrong during the original hearing.
The court may also restrict their review of the original decision to the grounds of appeal set out in the appeal notice, which must be filed at the beginning of the appeal process. It is therefore important to ensure that your application covers all the aspects of the decision that you wish to challenge.
This system is designed to give people a way to officially challenge judges’ rulings, but not to allow anyone with a gripe to clog up the family courts. So if you really want to challenge a decision, make sure you have legitimate reasons for doing so. You must also bear in mind the question of costs: an unsuccessful appellant may be ordered to pay his or her opponent’s legal costs.
And finally please note in particular:
The appeal process is complex and full of potential pitfalls. If you believe you have genuine grounds for an appeal, consult a specialist family lawyer at the earliest opportunity to avoid prejudicing your prospects of a successful appeal. Due to the technical nature of the process the above is a summary only and is no substitute for detailed legal advice.
Holly Lamb is a solicitor based at the Stowe Family Law London office. She has experience in a wide range of family law matters ranging from high net worth ancillary relief and prenuptial agreements to international child abduction cases. While her work is primarily based in England and Wales, she has also advised international clients in Bahrain, Qatar, Dubai, Germany, the Netherlands, Italy, Finland and the US.