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					                Appeals

             Danish Ameen




                                                  Public Law Update
                                                    11 October 2010
Young Street Chambers     Manchester Marriott Victoria & Albert Hotel
Overview
 •Why appeal?
 •Appeal process:
   •From Family Proceedings Court /
   District Judges:
      •Emergency Protection Orders
      •Care Orders; Supervision Orders
                                                  Public Law Update
                                                    11 October 2010
  Young Street Chambers   Manchester Marriott Victoria & Albert Hotel
Why Appeal?
 •Nature of Family Proceedings
 •Importance of representing your case at its
 highest
 •Ensuring justice is done
 • Appeal challenges the decision of the court – not
 other parties



                                                    Public Law Update
                                                      11 October 2010
 Young Street Chambers      Manchester Marriott Victoria & Albert Hotel
   Emergency Protection Orders
•s45(10) Children Act 1989:
No appeal may be made against –
(a)The making of, or refusal to make, an emergency protection
   order;
(b)The extension of, or refusal to extend, the period during which
   such an order is to have effect;
(c)The discharge of, or refusal to discharge, such an order, or;
(d)The giving of, or refusal to give, any direction in connection
   with such an order.
•Essex County Council v F [1993] 1 FLR 847
•Re P (Emergency Protection Order) [1996] 1 FLR 482

                                                              Public Law Update
                                                                11 October 2010
     Young Street Chambers            Manchester Marriott Victoria & Albert Hotel
Discharge of Emergency Protection Order
  •s45(8) CA1989: grants permission to apply for discharge of
  an EPO
  •Form C2
  •Must be served on every person with PR; the child; parties
  to original proceedings (FPR 1991, r4.7; FPC (CA 1989)R 1991,
  r 7)
  •Also, service on local authority providing accommodation
  for child; persons caring for child at commencement of
  proceedings; person providing refuge to child under s51 CA
  1989 (FPR 1991, r4.4, App 3; FPC (CA 1989)R 1991, r4, Sch 2)
  •Guardian must normally be appointed (s41(1) CA 1989)

                                                           Public Law Update
                                                             11 October 2010
   Young Street Chambers           Manchester Marriott Victoria & Albert Hotel
   Discharge of Emergency Protection Order
                  (cont.)
•Could be heard by any tribunal except for justices’ clerk or single
justice, who have no such power (JCR 1999; s93(2)(i) CA 1989; r2(5)
FPC (CA 1989)R 1991)
•Restrictions: No application allowed where applicant had proper
notice of original application and present at the EPO hearing, or if
EPO has already been extended (s45(11) CA 1989)
•Remember – no right to appeal decision of the court (s45(10) CA
1989)
•Guidance for EPO’s:
    •X Local Authority v B (EPO) [2005] 1 FLR 341
    •Re X (EPO) [2006] 2 FLR 701
                                                                Public Law Update
                                                                  11 October 2010
       Young Street Chambers            Manchester Marriott Victoria & Albert Hotel
Discharge of Care or Supervision Order
  •s39 CA 1989 gives authority for the following
  people to apply to discharge a care or a supervision
  order:
     •Any person who has PR for the child;
     •The child himself; or
     •The local authority designated by the order

  •Paramount principle (s1(1) CA 1989) and welfare
  checklist (s1(3) CA 1989) deciding factors.
  •Also, s1(5) CA 1989 relevant.
                                                       Public Law Update
                                                         11 October 2010
   Young Street Chambers       Manchester Marriott Victoria & Albert Hotel
   Discharge of Care or Supervision
           Order (cont.)
•Form C1
•Guardian must normally be appointed (s41(1) CA 1989)
•Must be at least 6 months after any previous application
to discharge care or supervision order (s91(15) CA 1989)
•Don’t forget s.91(1) CA 1989:
   The making of a residence order with respect to a child
   who is the subject of a care order discharges the care
   order

                                                           Public Law Update
                                                             11 October 2010
       Young Street Chambers       Manchester Marriott Victoria & Albert Hotel
           Care and Supervision Orders
•s94 CA1989: grants authority to any party to the proceedings to
appeal the decision of the court
•No requirement to seek permission
•Restrictions on right to appeal:
    •Decision to decline jurisdiction (s94(2) CA 1989)
    •Make, or refuse to make, an EPO (s45(10))
    •Against an interim periodical payments order (s94(3) CA 1989)

•Orders to give effect to its determination (s94(4) CA 1989)
•Incidental/consequential orders as appear to be just (s94(5) CA
1989)

                                                                 Public Law Update
                                                                   11 October 2010
         Young Street Chambers           Manchester Marriott Victoria & Albert Hotel
Care and Supervision Orders – Appeal Notice
  •File and serve notice of appeal within 14 days (8.2A(3)(a) FPR 1991)
  •In respect of ICO/ISO: 7 days (8.2A(3)(b) FPR 1991)
  •The following should be served with the notice of appeal, or as soon as
  practicable after the filing of the notice of appeal:
       •Certified copy of summons/application and order appealed against
       •Copy of any notes of evidence; and
       •Copy of any reasons given for the decision.
       (8.2A(1) FPR 1991)

  •Unless the court orders otherwise, an appeal shall not operate as a stay
  of proceedings (8.2C FPR 1991)



                                                                     Public Law Update
                                                                       11 October 2010
         Young Street Chambers               Manchester Marriott Victoria & Albert Hotel
    Care and Supervision Orders –
        Respondent Notice
•Respondent Notice must be filed and served within 14 days upon receipt
of the notice of appeal. Applicable if they wish to contend:
    •the decision of the court below ought to be varied, in any event or if
    the appeal is allowed in whole or in part;
    •That the decision of the court below should be affirmed on grounds
    other than those relied upon by that court; or
    •By way of cross appeal that the decision of the court below was
    wrong in whole or in part
     (r8.2B(1) FPR 1991)

•Not applicable in respect of interim orders (r8.2B(2) FPR 1991)

                                                                    Public Law Update
                                                                      11 October 2010
       Young Street Chambers                Manchester Marriott Victoria & Albert Hotel
           Care and Supervision Orders –
                Appeal Court’s Powers
•Appeal court has all the powers of the court below (r8.2F(1) FPR
1991)
•Power to:
    •Affirm, set aside or vary any order or judgment
    •Refer any application or issue for determination by the court
    below; or
    •Order a new hearing;
    (r.8.2F(2)(a) – (c) FPR 1991)
•Limited to review of the decision of the court below unless a
specific provision provides otherwise, or the court considers it in
the interests of justice to hold a rehearing (r8.2G(1))
                                                                 Public Law Update
                                                                   11 October 2010
       Young Street Chambers             Manchester Marriott Victoria & Albert Hotel
Care and Supervision Orders – Evidence
  •Unless the court orders otherwise, the appeal court
  will not receive:
      •Oral Evidence; or
      •Evidence which was not before the court below
      (8.2G(2) FPR 1991)

  •How realistic is this in light of paramount
  consideration(s1(1) CA 1989) and welfare checklist
  (s1(3) CA 1989)?

                                                          Public Law Update
                                                            11 October 2010
      Young Street Chambers       Manchester Marriott Victoria & Albert Hotel
Care and Supervision Orders - Practice Direction
(Family Proceedings: Appeals) [2009] 1 FLR 1103
  •Came into force: 6th April 2009
  •Approved transcript of judgment ought to accompany
  appeal notice. In the alternative, the following will be
  acceptable:
     •Written judgment
     •Written reasons
     •Note of judgment
     •Where appellant unrepresented: Advocates’ notes
     of judgment
                                                           Public Law Update
                                                             11 October 2010
       Young Street Chambers       Manchester Marriott Victoria & Albert Hotel
  Care and Supervision Orders - Practice
  Direction (Family Proceedings: Appeals)
   [2009] 1 FLR 1103 (cont.)
•Where the evidence is relevant to the appeal, an
official transcript of the relevant evidence must be
obtained
•If not officially recorded, a typed version of judge’s
(including district judge sitting in FPC) or justices’
clerk’s notes of evidence must be obtained

                                                          Public Law Update
                                                            11 October 2010
        Young Street Chambers     Manchester Marriott Victoria & Albert Hotel

				
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