The Petition of a mother living in Birmingham, Yardley,
Declares that the mother was betrayed by her barrister Andrew Neaves in care proceedings in Birmingham.
He allowed the judge to conclude that she accepted the need for a care order when she clearly did not.
Also, in cross examining his own client he asked and she responded:
Q. I think in these proceedings you have already made a number of statements, which we see in the bundle and also on your behalf a response to the threshold has been made, which resulted in an agreed threshold document. Is that right?
A. Yes.
Q. And is what you have said in the course of your statements to this Court true and accurate?
A. Yes.
Q. I am not going to take you in detail to your statement. What I am going to ask you about are matters in particular of more recent moment, but before I do I want to ask you first of all about the threshold document that has been agreed in this case. Do you accept that the threshold document contains agreed information before the Court, which illustrates that in the past your parenting has not been good enough?
A. Yes.
Following this District Judge Asokan concluded in her judgment of 26th September 2012 paragraph 21:
“All the parties agreed that the threshold criteria pursuant to s.31 of the Children Act 1989 has been met. I am therefore, empowered to make an order in this instance.”
The mother, however, did not agree that the threshold criteria had been met merely that the facts in the threshold criteria were true. The mother takes the view that the threshold criteria do not meet the threshold of “significant harm” as referred to in the Children Act 1989. The threshold criteria referred to accidents that happened to the children, an attempt by a child to open the door of a clothes dryer, an attempt by the young children to leave the house when a visiting Social Worker left the front door open, having a Staffordshire Bull Terrier dog that sat on a child’s torso and having inadequate stair gates.
The mother appealed the decision and HHJ Hindley refused permission to appeal. This had the effect of preventing the case and the malpractice of Mr Neaves from being considered by the court of appeal and was refused on the basis of jurisdiction by the court of appeal on 26th September 2013 reference [2013] EQCA Civ 1158. Furthermore the appeal was considered to be out of time because of a delay in obtaining a judgement. HHJ Hindley argued that because the mother had a barrister at the hearing in court of first instance that it was possible to appeal without the judgement. However, given that the mother’s argument is that her barrister undermined her case it would be quite surprising if the barrister had assisted her in putting that argument to an appellate court.
The Petitioner therefore requests that the House of Commons establishes an inquiry into her case and the general difficulty faced by parents getting their cases considered by the appellate system particularly when victims of malpractice by legal advisors and whether the Access to Justice Act 1999 should be changed to ensure that all cases can be considered at least on paper by the Court of Appeal.
And the Petitioners remain, etc.—[Presented by John Hemming, Official Report, 8 October 2013; Vol. 568, c. 1P.]
[P001224]
Observations from the Secretary of State for Justice:
First I should say that we make no comment on the allegations made in the petition against the barrister acting for the mother in this case. The legal profession is independent and self-regulating and there are independent regulatory authorities in place to address any allegations of conduct matters.
As to the Petitioner’s request to review this particular case the President of the Family Division, Sir James Munby, was very clear in his judgment and summarised his findings as follows:
“As will be appreciated, this is not, as the mother asserts, a second appeal. It is an attempt to appeal not against a decision on appeal but from a decision of an appellate court—here Judge Hindley — to refuse permission to appeal to that court. Accordingly, section 54(4) of the Access to Justice Act 1999 applies (see also FPR PD30A, para 4.5):
“No appeal may be made against a decision of a court under this section to give or refuse permission”.
The President therefore considered that the application was fundamentally misconceived. The full judgement in this case can be found at:
http://www.bailii.org/ew/cases/EWCA/Civ/2013/1158.html.
With regards to the proposal that all cases should be considered by the Court of Appeal, the rationale for re-routing appeals away from the Court of Appeal has been established in history. Principles specifically applicable to the appeals process in family cases, which were set out in “Review of the Court of Appeal (Civil Division): Report to the Lord Chancellor” by Sir Jeffrey Bowman in 1997, included that:
“Certain appeals which [formerly reached] the Court of Appeal should normally be heard at a lower level provided that they are heard by a court or judge with a superior jurisdiction to the court or judge who made the first instance decision” 1.
The Bowman Review recommended the establishment of a specialist committee to rationalise the routes of appeals in family cases and to bring them in line with the underlying principles outlined for civil appeals. The Lord Chancellor consulted on specific proposals for implementing reforms to the family appeals system. The relevant recommendations were enacted in the Access to Justice Act 1999.
There are statutory rights of appeal to the Court of appeal from the determination of a judge of a county court (section 77 of the County Courts Act 1984) and from a judgment or order of the High Court (section 16 of the Senior Courts Act 1981). In line with the policy of the Bowman Report outlined above, the general position in family proceedings is that appeals from decisions made at district judge level and below in a county court and High Court are taken away from the Court of Appeal and routed to a county court or the High Court as the case may be. The power in section 56 of the Access to Justice Act 1999 has been used to achieve this rerouting (see the Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2011 (S. I.2011 /1044). An order under section 56 is made by the Lord Chancellor after consulting the Heads of Division and follows the affirmative resolution procedure.
Circumstances remain where the Court of Appeal hears the appeal. Section 57 of the Access to Justice Act 1999 enables appeals to courts other than the Court of Appeal or the Supreme Court to be re assigned to the Court of Appeal. Where a judge of a county court or of the High Court makes a decision on hearing an appeal, a second appeal to the Court of Appeal is possible where the Court of Appeal considers that the appeal would raise an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it.
Looking at the appeals procedure more generally a party who is dissatisfied with the decision of a district judge has a right of appeal to a judge of the county court subject to obtaining permission to appeal. No permission is required against a committal order or a secure accommodation order under section 25 of the Children Act 1989.
An application for permission to appeal may be made to the court at the hearing at which the decision to be appealed was made or to the appeal court (which would consist of a judge of a county court where the decision being appealed was made by a district judge). Where the court refuses an application for permission at the hearing at which the decision to be appealed was made, a further application for permission may be made to the appeal court. Rule 30.3 of the Family Procedure Rules 2010 is the relevant court rule relating to applying for permission. And this is supported by paragraphs 4.1 to 4.24 of the Appeals Practice Direction 30A. As the President stated in his judgment on this case section 54(4) of the Access to Justice Act 1999 provides that there is no appeal against a decision to grant or refuse permission to appeal.
The time limits for appealing are set out in rule 30.4 of the Family Procedure Rules 2010. The general rule is that the person who brings or seeks to bring the appeal must file the appellant’s notice at the appeal court within such period as may be directed by the court which made the decision to be appealed or where that court does not make a direction, the appellant’s notice must be filed 21 days after the date of the decision which the person wishes to appeal. The period for filing the notice by the court which made the decision to be appealed may be longer or shorter than 21 days. Rule 30.7 provides that an application to vary the time limit for filing the notice must be made to the appeal court. The case management powers in Part 4 of the Family Procedure rules give the court power to extend or shorten the time for compliance with a rule, practice direction or court order (even if an application for extension of time is made after the time for compliance has expired).
The Family Procedure Rule Committee consulted on certain amendments to the appeals rules in a targeted consultation of interested parties between 27 July and 20 September 2013. They are now considering amendments to the rules and supporting practice directions in consequence of the setting up of the new family court. Consideration is also being given to the routes of appeal from decisions of judges as part of the work related to the setting up of the new family court.
1Recommendation 10. “Review of the Court of Appeal (Civil Division): Report to the Lord Chancellor”. September 1997. Department for Constitutional Affairs. p.141.