14.1 Appeals from the district judge

There are essentially two routes of appeal from the district judge to the circuit judge in family cases.

1. Under Family Proceedings Rules, rule 8.1. This involves a rehearing and a fresh exercise of discretion although the district judge's findings of fact may be relied upon, see Marsh v Marsh [1993] 2 All ER 794. This rule applies to:

   a) orders under Part 2 of the Children Act 1989;
   b) ancillary relief;
   c) non-molestation orders under Part IV Family Law Act 1996;
   d) any other proceedings not covered in 2. below.

2. Under CCR Ord 37 r 6. This involves an exercise akin to that of the Court of Appeal: no fresh evidence save where admissible in that court. The rule applies by virtue of the Family Proceedings Rules (FPR) 8.1A (6) to occupation orders and transfers of tenancy under Part IV of the Family Law Act 1996.

Although CCR Ord 37 r 6 has been revoked in so far as civil proceedings are concerned, by the Civil Procedure (Amendment) Rules 2000 (SI 2000 No. 221), it still governs the court's approach to the appeals mentioned here.

14.2 Committal applications

The position with regard to applications for committal is not clear. They are not mentioned in Rule 8(1)A and are therefore an appeal under FPR 8.1. The Lord Chancellor's Department has advised that the position is covered by section 13(1) of the Administration of Justice Act 1960, and that the appeal is therefore direct to the Courts of Appeal. However, in Read & Slack v King (unreported, 18 November 1996), the Court of Appeal held in respect of a district judge's power to commit under section 14 of the County Courts Act 1984, that there was an appeal to the circuit judge under CCR Ord 37 r 6 and only thereafter to the Court of Appeal.

14.3 Appeals from the circuit judge

These lie with leave to the Court of Appeal. As a matter of practice it is better to refuse leave, thereby encouraging the proposed appellant to seek leave from the Court of Appeal. If the case is an urgent one, and the Court of Appeal grants leave, a full hearing can then be arranged more speedily.

14.4 The Bowman Report

The issue of the route and form of family appeals has to be seen in the light of the Bowman Report, which sets out the following principles in respect of all appeals:

1. An appeal should not be seen as an automatic further stage in a case.
2. Appeals should be dealt with in ways which are proportionate to the ground of complaint and the subject matter in dispute.
3. More than one level of appeal cannot be justified except in restricted circumstances.
4. Certain appeals which now reach the Court of Appeal should normally be heard at a lower level, provided that they are heard by a court of superior jurisdiction to the court that made the first instance decision.

In July 1998 the Family Appeals Review Group (FARG), chaired by Lord Justice Thorpe, reported to the Lord Chancellor and made recommendations in respect of the whole of the appeal structure in the family justice system. In so far as the county court is concerned the principal recommendations were as follows:

1. Any appeal from any order of a district judge shall be to the High Court without leave.
2. The High Court may release to a section 9 judge. If an ancillary relief case, the release must be to a judge designated for such work.
3. All appeals shall be determined upon G v G principles but with some relaxation of the rule in Ladd v Marshall [1954] 3 All ER 745. See also on this point Re W, Re A, Re B (Change of Name) [1999] 2 FLR 930, 938B.
4. A minority strongly contended that ancillary relief appeals should continue to be dealt with upon Marsh v Marsh principles.
5. Appeals from the circuit judge would lie with leave to the Court of Appeal.
6. Any case which raised an important or special issue would with leave go straight to the Court of Appeal.