Wednesday, October 16, 2013

Family Lore Clinic: Can you appeal against a shared residence order?


A shared residence order is an order stating that a child shall live part of the time with one parent and the rest of the time with the other parent. Presumably, the person who asked this question feels that in their case the court should have made a sole residence order in their favour, possibly with a contact order in favour of the other parent.

I am going to answer the question by making four points that apply to all appeals:

Firstly, you can't generally appeal against an order you have consented to. Accordingly, if the questioner agreed to the joint residence order (and many joint residence orders are agreed), they cannot usually appeal against the order. If they no longer think that the order is in the best interests of the child/children, they can ask the court to vary the order.

Secondly, you will usually require the permission of the court to pursue the appeal. Permission will only be granted if the court considers that the appeal has a real prospect of success, or if there is some other compelling reason why the appeal should be heard.

Thirdly, the appeal court will usually accept any findings of fact by the court below (for example, a finding that an allegation made by one parent is or isn't true). You will not therefore be able to challenge those findings, unless something went very obviously wrong with the process that led to the findings.

Finally, to succeed on an appeal you will have to show either that something went so seriously wrong with the procedure that it made the decision unjust, or that the decision was outside the 'bracket' of reasonable decisions and therefore plainly wrong. As to the latter, it is likely to be extremely unusual to be able to show that a shared residence order was plainly wrong.

Obviously, the above is only a very brief summary of the law on appeals. If you are considering appealing any family court order, you should consult a specialist family lawyer.

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