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Practice Direction supplements rules 8.A1 and 8.2 to 8.2H of the Family Proceedings Rules 1991 (“the 1991 Rules”)

The Practice Direction below is made by the President of the Family Division under the powers delegated to him by the Lord Chief Justice under Schedule 2, Part 1, paragraph 2(2) of the Constitutional Reform Act 2005, and is approved by the Lord Chancellor.

APPEALS
This Practice Direction supplements rules 8.A1 and 8.2 to 8.2H of the Family Proceedings Rules 1991 (“the 1991 Rules”)

Application and purpose
1.1 Rules 8.A1 and 8.2 to 8.2H, which are inserted into the 1991 Rules by the Family Proceedings (Amendment) Rules 2009, relate to the process for-

- statutory rights of appeal from decisions of a magistrates’ court; and
-? internal appeals in a county court from a decision of a district judge to a judge in proceedings –

(i) which are listed in rule 4.1(2) of the 1991 Rules (appeals under the Children Act 1989 (“the 1989 Act”); and
(ii) to which parts 4 and 4A of the Family Law Act 1996 apply (appeals relating to non-molestation and occupation orders and forced marriage protection orders).

1.2 Rules 8.A1 and 8.2 to 8.2H accommodate appeals which lie to a county court from decisions of a magistrates’ court as a result of statutory amendments made by the Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2009 (“the Destination Order”).

1.3 The purpose of this Practice Direction is to give guidance regarding the application of rules 8.A1 and 8.2 to 8.2H in relation to the following matters -

Coming into force
2 This Practice Direction comes into force on 6th April 2009.

Suitable record of the judgment
3.1 Where the judgment to be appealed has been officially recorded by the court, an approved transcript of that record should accompany the appeal notice.

Photocopies will not be accepted for this purpose. However, where there is no officially recorded judgment, the following documents will be acceptable—

Written judgments
- Where the judgment was made in writing a copy of that judgment endorsed with the judge’s signature.

Written reasons
- in a magistrates’ court, a copy of the written reasons for the court’s decision. The magistrates’ court will make a record in writing of the reasons for its decisions in all family proceedings listed in section 65 of the 1980 Act. The Family Proceedings Courts (Matrimonial Proceedings etc.) Rules 1991 (rules 11 and 12) and the Family Proceedings Courts (Children Act 1989) Rules 1991 (rules 20 and 21) already require the justices’ clerk in consultation with the justice or justices to record in writing the reasons for the court’s decision and for the justices’ clerk to keep a written note of the substance of oral evidence given at a hearing. Proceedings to which those rules apply include proceedings under the 1989 Act and those under the Domestic Proceedings and Magistrates’ Courts Act 1978. The requirement for the magistrates’ court to give written reasons for its decision is not to be restricted to those proceedings covered by those rules but is to apply to all family proceedings.

Note of judgment
- When the judgment of the court has not been officially recorded or made in writing, a note of the judgment (agreed between the appellant's and respondent's advocates) should be submitted for approval to the judge whose decision is being appealed. If the parties cannot agree on a single note of the judgment, both versions should be provided to that judge with an explanatory letter.

Advocates’ notes of judgments where the appellant is unrepresented
- When the appellant was unrepresented in the court below it is the duty of any advocate for the respondent to make the advocate’s note of judgment promptly available, free of charge to the appellant where there is no officially recorded judgment or if the court so directs. Where the appellant was represented in the court below it is the duty of the appellant’s own former advocate to make that advocate’s note available in these circumstances. The appellant should submit the note of judgment to the appeal court.

3.2 If an appellant is not able to obtain an official transcript or other suitable record of the decision of the court below within the time within which the appeal notice must be filed, the appeal notice must still be completed to the best of the appellant's ability on the basis of the documentation available. It may be amended subsequently with the permission of the appeal court in accordance with rule 8.2D (Amendment of appeal notice).

Advocates’ notes of judgments
3.3 An advocate’s fee for any relevant hearing includes—

- remuneration for taking a note of the judgment of the court;
- having the note transcribed accurately;
- attempting to agree the note with the other side if represented;
- submitting the note to the judge for approval where appropriate;
- revising it if so requested by the judge;
- providing any copies required for the appeal court, instructing solicitors and lay client; and
- providing a copy of the note to an unrepresented appellant.

Transcripts or Notes of Evidence
3.4 When the evidence is relevant to the appeal an official transcript of the relevant evidence must be obtained.

Notes of evidence
3.5 If evidence relevant to the appeal was not officially recorded, a typed version of the judge’s (including a district judge (magistrates’ courts)) or justices’ clerk’s/assistant clerk’s notes of evidence must be obtained.

The application of rule 8.A1 and 8.2 to 8.2H to appeals under section 111A of the Magistrates’ Courts Act 1980(“the 1980 Act”) from a magistrates’ court to a county court on the ground that the decision is wrong in law or in excess of jurisdiction

4.1 As a result of an amendment to section 111 of the 1980 Act by the Destination Order an application to have a case stated for the opinion of the High Court under section 111 of that Act may not be made in relation to family proceedings. Family proceedings for those purposes are defined as—

- proceedings which, by virtue of section 65 of the 1980 Act, are or may be treated as family proceedings for the purposes of that Act; and
- proceedings under the Child Support Act 1991.

4.2 Section 111A of the 1980 Act, which is inserted by article 4(3) of the Destination Order, provides that in family proceedings as defined in paragraph 4.1 above a person may appeal to a county court on the ground that a decision is wrong in law or is in excess of jurisdiction; this appeal to a county court replaces the procedure for making an application to have a case stated. Section 111A(3)(a) provides that no appeal may be brought under section 111A if there is a right of appeal to a county court against the decision otherwise than under that section.

4.3 Appeals under section 111A of the 1980 Act fall within rule 8.2(1)(a)(vii). The following rules apply to appeals under section 111A -

- rules 8.A1(a);
- 8.2(1)(a) and (4);
- 8.2A(1) and (2) and (4) and (5);
- 8.2C;
- 8.2D and
- 8.2E.

4.4 Section 111A(4) of the 1980 Act provides that the notice of appeal must be filed within 21 days after the day on which the decision of the magistrates’ court was given. The notice of appeal should also be served within this period of time.

Other statutory rights of appeal from a magistrates’ court
5 Appeals under sections 10(1)(a) to (3) and 13 (1) and (2) of the Crime and Disorder Act 1998 (parental orders and child safety orders) fall within rule
8.2(1)(a)(vii) as those sections give a person a right of appeal against a decision of a magistrates’ court. Rules 8A1 and 8.2 to 8.2G accordingly apply to appeals under those sections.

Appeals from magistrates’ courts –the court at which the appeal notice is to be filed
6.1 The effect of the Destination Order is that appeals against decisions of magistrates’ courts in family proceedings shall lie to a county court instead of to the High Court. In addition to replacing appeals by way of case stated as outlined in paragraph 4.2 above, the Destination Order amends the statutory provisions listed in rule 8.2(1)(a)(i) to (v) and the provisions of the Crime and Disorder Act 1998 listed below to provide for the appeals under those provisions to lie to a county court instead of to the High Court.

6.2 Paragraph 6.3 below applies to appeals under-

- section 4(7) of the Maintenance Orders Act 1958;
- section 29 of the Domestic Proceedings and Magistrates’ Courts Act 1978;
- section 60(5) of the Family Law 1986;
- section 94(1) to (9) of the Act of 1989;
- section 61 of the Family Law Act 1996;
- sections 10(1)(a) to (3) and 13 (1) and (2) of the Crime and Disorder Act 1998; or section 111A of the 1980 Act.

6.3 Subject to paragraph 6.4 below, the documents required to be filed by rule 8.2A (1) shall where the appeal is against the making by a magistrates’ court of any order or any refusal by a magistrates’ court to make such an order —

- in proceedings listed in the Schedule to this Practice Direction, be filed in a care centre within the meaning of article 2 (b) of the Allocation and Transfer of Proceedings Order 2008; and
- in any other case, be filed in a family hearing centre within the meaning of article 2(a) of that Order.

6.4 Where the appeal is an appeal from a decision of a magistrates’ court under section 94 of the 1989 Act or section 61 of the Family Law Act 1996, the documents required to be filed by rule 8.2A(1) may be filed in the principal registry of the Family Division of the High Court.

6.5 Article 11 of the Destination Order amends article 3 of the Allocation and Transfer of Proceedings Order 2008 to provide that the principal registry of the Family Division of the High Court is treated as a county court for the purposes of appeals from decisions of a magistrates’ court under section 94 of the Children Act 1989 and section 61 of the Family Law Act 1996.

SCHEDULE
Description of proceedings
(i) Proceedings under section 25 of the Children Act 1989;
(ii) Proceedings under Parts IV and V of the Children Act 1989;
(iii) Proceedings under Schedules 2 and 3 to the Children Act 1989;
(iv) Applications for leave under section 91(14),(15) or (17) of the Children Act 1989;
(v) Proceedings under section 102 of the Children Act 1989 or section 79 of the Childcare Act 2006;
(vi) Proceedings for a residence order under section 8 of the Children Act 1989 or for a special guardianship order under section 14A of the Children Act 1989 with respect to a child who is the subject of a care order.
(vii) Proceedings for a residence order under section 8 of the Children Act 1989 where either section 28(1)(child placed for adoption) or 29(4)(placement order in force) of the Adoption and Children Act 2002 applies;
(viii) Proceedings for a special guardianship order under section 14A of the Children Act 1989 where either section 28(1)(child placed for adoption) or section 29(5)(placement order in force) of the Adoption and Children Act 2002 applies.

_____________________________
The Right Honourable Sir Mark Potter
The President of the Family Division
_____________________________
Parliamentary Under Secretary of State,
Ministry of Justice