Justice For Families

HOW DO YOU APPEAL A MAGISTRATES DECISION?

Brains gone all mushy but hold on here I think I have found a different avenue.

I would really like honest opinions and your input but read below and see why my brains all mushy.

Now this topic should be in the court procedures, I think it's a bit too important for that though.

I was in Stoke on Trent CC today enquiring about the above topic and in a nut shell, the courts were flumped as much as I was there is NO practice guidence nor is there any specific application form for it.

The principles for appealing a Magistrates FAMILY decision is not in Statue Law nor is it documented in the family court practice guidence "book". They tell you the docs needed, the principles of what should happen but theres no definative way to do this.

Bless the staff at Stoke on Trent but they pulled out all the stops to find the answer for me, it took a while and the situation now is the Misitry of Justice are addressing the issue as I caused a bit of a stir.

The only way a MAGS decision, by this I mean granting of ICO's and EPO's can be appealed is by using the N161 Appelants notice, however I am not too sure the County Courts would accept the application, time will tell if they do or not. (Stoke on Trent Advised that I use it)

The staff at Stoke on Trent, including the resident legal advisor have never heard of the issue I placed on their lap, the law books were being ruffled in the background and after the Ministry of Justice were contacted, the easy answer for them was the N161.

In theory it shouldn't be a problem but like the Court staff in Stoke on Trent the question nor the issue has ever been raised before.

To look at this from another angle, maybe instead of contesting the renewal of ICO's why don't we look at just appealing them. time is obviously of the essence when doing this but appealing the ICO's granted by Mags should be straight forward. I think this is where the courts problems lay.

Appealing the ICO in county, or High would in theory lead to appeal in the COA if County or High refued the appeal

ICO's only last 28 days, however if theres an appeal of one what would happen if the appeal took longer than 28 days, it could clearly happen these days, would the courts still grant the next ICO, would that instigate another appeal?

See My Dilema!!!!! This has opened a whole can of worms here, I understand Stoke on Trents problems.

Small print to this point is the determination of whether the order was granted by Mags or the Family Proceedings Courts (same thing in my books) highlighted to me today was that if its in the FPC's where the order was granted then the case has to be appealed to the High Court, the Mags appeal should be in the County Court.

I would love to hear from anyone who tries this, the result would be quite intresting.

Just a thought MoBaldy - If you lodged an appeal on the appropriate form can't you simply lodge a request to expedite the hearing at the same time - seems perfectly reasonable to me that the appeal would have to be heard before the ICO (or indeed EPO) expired.

Actually, now I think about I did read about the appeal of an EPO - it is to High Court in London and there is even an out of hours phone number.

I think this all warrants further investigation...

Taken from a document given to me by Stoke which they got from the MOJ

The Access to Justice act 1999 (destination of Appeals) (Family Proceedings) order 2009

From 6th April 2009 all appeals against decisions of magistrates' family proceedings court will be made to the county court by a notice of appeal, applicants wishing to lodge an appeal in the county court will be required to do so using the N161 (appellants notice) Form N161 WILL be ammended in Due course to reflect the changes.

The Ministry of Justice will provide the weblinks to the relevant documents as soon as they are published. in the mean time any enquiries about the New order should contact the Access to Justice Policy Directorate at the Ministry of Justice.

Well that cleared that up then, I think,
there will be more to follow on this topic.

Yes, It's appealed to the CC.

I was going to do the same thing in Nottingham for a couple but apparently when I asked them for proof of benefit they didnt want to "mess their money up"

IMO the kid is better off adopted, if that's their attitude.

Ouch, Andrew!

It is possible that there is something dodgy going on with their benefit claims and they were terrified of getting into trouble about it.

Out of curiosity, why did you need proof of benefit? Once Care Proceedings are initiated they would be entitled to free legal aid regardless of income.

keepittoggether wrote:Ouch, Andrew!

It is possible that there is something dodgy going on with their benefit claims and they were terrified of getting into trouble about it.

I would bet my life there is nothing dodgy, the reason why is because they are a bit simple (in all honesty), when I phoned up they thought I was the council tax man and said they didn't have to pay as they were on the dole lol

They do believe it would mess their money up, even though we know it cannot.

keepittoggether wrote:Out of curiosity, why did you need proof of benefit? Once Care Proceedings are initiated they would be entitled to free legal aid regardless of income.

To fill out the EX160 to initiate proceedings in an effort to get their child back ie revocation of the placement order.

this is what i know,you can not appeal a epo for three days even if the epo is not legal it is unappealable but what you can do is make a urgent application to a section 9 judge to have the groungds heard but still this judge cannot overturn it for 3 days,just express his disgrace

Keepittogether. the proof of benefit would be to avoid court charges.The solicitors ask for this an if the find you told lies about savings or having money an claiming legal aid you will have to pay the money back. An E 160 is exempt form for court UK Secret courts done this. Like with every thing else you have to pay court fees .So if you are not working you will need proof of benefit to show the courts an bank statements.

Never had to fill in any income forms!!!!!!

It is only if you need to avoid getting court fees that you need to fill in income forms. If you have non means tested legal aid then you don't pay court fees.

Bloody LA are refusing to provide documentation to prove they provide a samll amount of financial assistance to me for my children (whilst I am applying for tax credits) therefore delaying my application for legal funding, which I am now going to have to foot the bill for!!!

This might help.


c) Mere lack of information or need for assessment can never establish genuine emergency for EPO. Proper course is an application for Child Assessment Order or issuing section 31 proceedings with direction under section 38(6);

I found it at this link.

http://www.familylawweek.co.uk/site.aspx?i=ed301


also

m) Justices faced with EPO application in a case of emotional abuse, non-specific sexual abuse allegations and/or fabricated illness should consider refusing on the basis that the local authority should then issue ICO. It is then likely that the justices will transfer the case up to a county court / High Court;

it says that the Justices should have considered refusing the application or transferring the case to County Court.


and


Emergency Protection Orders
The judge found multiple failings in the trial process of obtaining the EPO. The current law and practice in relation to EPO's was reiterated and the judge produced a 'good practice guidance' drawing together all the concerns raised by this case:

a) A copy of Munby J's judgment in X Council v B should be made available at every EPO application;

b) It is the duty of the Applicant to ensure X Council v B is available;

xii. Section 44(5)(b) of the Children Act 1989 provides that the local authority may exercise its Parental Responsibility only in such manner ‘as is reasonably required to safeguard or promote the welfare of the child.’ Section 44(5)(a) provides that the local authority shall exercise its power of removal under Section 44(4)(b)(i) ‘only...in order to safeguard the welfare of the child.’ The local authority must apply its mind very carefully to whether removal is essential in order to secure the child’s immediate safety. The mere fact that the local authority has obtained an EPO is not in itself enough. The FPC decides whether to make an EPO. But the local authority decides whether to remove. The local authority, even after it has obtained an EPO, is under an obligation to consider less drastic alternatives to emergency removal. Section 44(5) requires a process within the local authority whereby there is a further consideration of the action to be taken after the EPO has been obtained. Though no procedure is specified, it will obviously be prudent for local authorities to have in place procedures to ensure both that the required decision making actually takes place and that it is appropriately documented.

found at this link.

http://www.proceduresonline.com/enfield ... proced.htm


also read


xiii. Consistently with the local authority’s positive obligation under Article 8 to take appropriate action to reunite parent and child, section 44(10)(a) and 44(11)(a) impose on the local authority a mandatory obligation to return a child who it has removed under section 44(4)(b)(i) to the parent from whom the child was removed if ‘it appears to the local authority that it is safe for the child to be returned’. This imposes on the local authority a continuing duty to keep the case under review day by day so as to ensure that parent and child are separated for no longer than it is necessary to secure the child’s safety. In this, as in other respects, the local authority is under a duty to exercise exceptional diligence.

Mac1 thanks for this, your well researched, {:o)

Another bit of info. Last line of the copy and paste.



If your appeal did go ahead:

* it would be listened to in a different court and not the court that made the original Order.
* the Appeal Court can either decide that the decision made by the first court was right in which case you would have lost your Appeal and the Order would still operate.
* or the Appeal Court can decide that the first court made the wrong decision and then make a different one.
* you (or we) may be able to appeal again until you get a hearing in the House of Lords. You usually need to ask the court for permission to appeal as you go higher up the court system. This can be very difficult and you will certainly need legal advice about this.

When an Emergency Protection Order is made, this only lasts up to eight days, so you cannot appeal against this Order. However, you can challenge the Order after three days if you want it removed.

http://www.plymouth.gov.uk/homepage/soc ... guidea.htm