Concept for - Permission to appeal

Often following the outcome of family proceedings one or may be more of the parties may consider that a decision that has gone against them should be appealed.

However, it is not simply a case of a disagreement with a court’s decision leading to an automatic right to appeal that decision. There is a process that has to be followed with strict legal tests.

What if I wish to appeal the decision?

The starting point is to seek permission to appeal from the Judge who gave the disputed decision. Only in very exceptional cases is this likely to be granted. Otherwise, the prospective appellant has to consider seeking a higher court’s permission to appeal.

I was recently involved in a case Re: S (2023) in which this process became necessary to pursue permission to appeal from a decision of a Circuit Judge in the Family Court. In the first instance this was made directly to that Judge and then on to a single Lord Justice of the Court of Appeal Civil Division.

Test for the grant of permission to appeal

The test for the grant of permission to appeal is set out in a case heard by the Court of Appeal in 2019.

The test is that the appeal would have a real prospect of success. This must be a realistic as opposed to fanciful, prospect of success. There is no requirement that success should be probable or more likely than not.

Every Judgment should be adequately reasoned such as that the reader and the family itself, know the right questions were asked and answered by the Judge. Often the relevant law is agreed between the legal representatives of the parties and placed before the Judge. Accordingly, the court has been given the correct legal tests and case law. However it may be that errors are identified in the court’s reasoning which make a Judgment inadequate.

The higher court considers the required paperwork when deciding to grant permission to appeal. Such paperwork includes the Appellant’s Notice and Grounds of Appeal and a Skeleton Argument prepared by Appellant’s legal representative often counsel. Also, any responses by any other party, a transcript of the Judgment to be appealed together with reports or statements referred to within that Judgment.

Having considered that information, usually on a paper basis, the single higher court Judge decides if permission to appeal should be granted and gives a brief explanation for that decision and provides for further court directions if the appeal is to proceed.