How to Appeal a Family Court Decision

If a family court has made a decision you believe is wrong, you may have the right to appeal it. But an appeal is not a second chance to argue the same case. It is a specific legal process with a specific legal test, and it is harder to succeed than most people expect.

This guide explains when an appeal is available, what grounds you need, how the process works in England and Wales, and what you should do if you are thinking about appealing.

What an Appeal Is and What It Is Not

An appeal is not a rehearing. The appeal court does not reconsider the case from scratch, hear new evidence, or simply substitute its own view for the judge's.

An appeal challenges whether the judge made a legal error, applied the wrong test, failed to take relevant matters into account, or reached a conclusion so plainly wrong that no reasonable judge could have reached it.

Disagreeing with the outcome is not, by itself, a ground for appeal. The fact that a different judge might have decided differently is not, by itself, a ground for appeal. This is the point that catches most people out.

The Grounds for Appeal

To appeal a family court decision, you need to show that the decision was:

• Wrong in law. The judge applied the wrong legal test, misunderstood the law, or reached a conclusion that the law does not permit.
• Wrong on the facts. The judge's findings of fact were not open to them on the evidence. This is a high bar. The appeal court gives significant weight to the fact that the original judge saw and heard the witnesses. A finding of fact is not wrong simply because you disagree with it.
• Unjust due to a serious procedural irregularity. Something went seriously wrong with the procedure of the original hearing in a way that affected the outcome.

In children cases, there is an additional consideration: whether the judge properly applied the welfare principle and the welfare checklist in Section 1 of the Children Act 1989. A failure to address the checklist factors properly can be a ground of appeal.

Permission to Appeal

You cannot simply lodge an appeal. You need permission first.

You should ask for permission at the end of the hearing at which the decision was made. If you do not do this, or if permission is refused at the hearing, you can apply to the appeal court for permission.

Permission will only be granted if the appeal has a real prospect of success, or if there is some other compelling reason for it to be heard. A real prospect of success is a meaningful prospect, not a fanciful one. It is a genuine filter, and many applications for permission fail at this stage.

Time Limits

Which Court Hears the Appeal?

This depends on which court made the original decision.

• If a lay magistrate or a district judge in the Family Court made the decision, the appeal goes to a circuit judge in the Family Court.
• If a circuit judge made the decision, the appeal goes to the High Court (Family Division).
• If a High Court judge made the decision, the appeal goes to the Court of Appeal.

The level of scrutiny increases as you go up the court hierarchy. Appeals to the Court of Appeal in family cases are relatively uncommon and require a strong legal point.

What Happens at an Appeal Hearing

An appeal hearing is not a rehearing of the original case. There are no witnesses. No new evidence is introduced except in very limited circumstances.

The appeal judge reads the transcript of the original hearing or the written judgment, considers the grounds of appeal, hears submissions from both parties (or their representatives), and decides whether the original decision was wrong in one of the ways described above.

If the appeal succeeds, the appeal court can set aside the original order, substitute a different order, or send the case back to be reheard by a different judge.

If the appeal fails, the original order stands.

Fresh Evidence

New evidence is rarely admitted on appeal. The general rule is that appeals are decided on the evidence that was before the original court. Fresh evidence may be admitted in exceptional circumstances where it was not reasonably available at the original hearing and where it is relevant and credible. The bar is high.

If you have discovered something new after the judgment, the right approach is usually to make a fresh application to the original court rather than to attempt an appeal.

Costs

In family cases, costs orders are less common than in civil litigation, but they are not impossible. If your appeal fails and is judged to have been without merit, you may face an order to pay the other party's costs. This is a real risk that needs to be weighed before deciding whether to appeal.

Is It Worth Appealing?

Most family court decisions are not wrong in a way that would justify an appeal. The judge may have got the balance wrong, or may have given more weight to one factor than you would have. But that is not the same as legal error.

Before deciding to appeal, you need an honest assessment of whether there is a genuine legal ground, not just a sense of injustice. Pursuing an appeal that has no realistic prospect of success costs time, money, and emotional energy that could be better used in other ways, including making a fresh application if circumstances have changed.

Northern Ireland

Getting Help

Deciding whether to appeal, and how to present an appeal effectively, requires a clear-eyed analysis of the original judgment, the legal test, and the realistic prospects of success.

John works with clients who are considering appeals and with clients who are facing an appeal brought by the other party. He helps people understand whether there is a genuine ground, what the process involves, and how to present the strongest possible case.

Pricing starts at £297 for one hour.