Appeals: law fact and discretion
If a first instance court’s decision is ‘wrong’ an appeal against that decision will be allowed (Civil Procedure Rules 1998, r 52.20(3) and Family Procedure Rules 2010, r 30.12(3)). The question which the Bloomsbury Family Law Briefing article addresses is how ‘wrong’ is ‘wrong’. Wrong in law is one thing and will mean an appeal should generally be allowed; whereas wrong in the exercise of discretion is a much narrower gate for the appellant to pass through. Wrong on facts will generally justify an appeal, but such ‘wrong’-ness will be rare.
Many family decisions depend on the exercise of a judge’s discretion. There, as Ward LJ said (quoted in the article): ‘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 that decision being successfully appealed.’ On the same set of facts two people may make opposite decisions (Eg child to go to a mother or a father) and neither will be wrong; still less ‘plainly wrong’.
Cases of the month: January 2018
AB (A Child) [2018] EWFC 3 (16 January 2018), Sir James Munby P – Seriously ill child; permission to local authority to withdraw care proceedings; a care order had been set aside on appeal.
G and H (Children: Article 15 Brussel II Revised Regulation) [2018] EWFC 60 (17 January 2018) HHJ Bellamy in the Family Court – Care order for two Latvian children. Refusal of transfer to the Latvian court (Brussels IIA Art 15).
St Helens Council v M and F (Baby with Multiple Fractures: Rehearing) [2018] EWFC 1 (22 January 2018) Peter Jackson LJ, sitting as a High Court judge – Re-hearing of care order application after further expert evidence heard in the criminal courts.
Neil & Anor v Henderson [2018] EWHC 90 (Ch) (23 January 2018), Zacaroli J – Forged documents, a statement adopting them and committal proceedings.
Campbell v Campbell [2018] EWCA Civ 80 (31 January 2018) – CPR 1998 r 46.5(3) allows a litigant in person to include reasonable costs of ‘legal services’; but this does not include those of foreign – including Jersey – lawyers.
David Burrows
February 2018
Family Law Briefing is part of the Bloomsbury Family Law Service. The full briefing is available here.
