Capitol Family Mediation Sutton

Errors in the Family Court process can stem from various sources, but when a decision is overturned on appeal, it is often due to one of the following legal flaws:

Procedural Unfairness – This is the most frequent reason for a case to be overturned on appeal (known as allowing the appeal). Procedural fairness means that all parties must have a fair opportunity to present their case.

Failure to Hear All Evidence: The Judge might be found to have reached a conclusion prematurely, before considering all relevant evidence, including reports from Cafcass or expert witnesses.

Lack of Reasons: The Judge fails to adequately explain why they reached a particular conclusion by clearly linking the evidence presented to the factors in the Welfare Checklist or to the relevant legal statute.

Bias or Predetermination: A rare but serious error where a Judge expresses a definitive view before the evidence has been fully heard, suggesting they have predetermined the outcome (as sometimes highlighted in Court of Appeal rulings).

Failure to Apply the Correct Legal Test – The court must apply specific legal tests when dealing with family matters. An error occurs if the Judge relies on personal preference rather than established law.

Ignoring the Welfare Checklist: For Child Arrangements Orders, the Judge is legally required to work through every part of the Welfare Checklist. A failure to show that all seven factors were considered can constitute a legal error.

Lack of Full Disclosure (Finance): In financial cases, the entire process rests on the parties providing “full and frank disclosure” (Form E). A Judge failing to robustly investigate suspicions of non-disclosure, or failing to properly consider the impact of debt or pensions, could be an error.

Intervention Thresholds: In public law cases (Social Services involvement), the court must apply strict legal thresholds of “significant harm.” An error may occur if the Judge’s intervention is disproportionate or not legally justified.

What Happens If an Error Occurs? –If a party believes the Judge has made a legal error, they must apply to the Court of Appeal for permission to appeal the decision. If the appeal is successful, the decision is usually set aside, and the matter is remitted (sent back) to be heard again by a different Judge.

Crucially, disagreeing with the Judge’s decision is not a ground for appeal; the appeal must be based on the belief that the Judge made a legal or procedural mistake in the process.

How to Minimise Mistakes – The best way for parents and carers in Sutton to mitigate the risk of error is by:

Providing Clear Evidence: Ensure all facts and evidence are presented clearly, accurately, and on time.

Seeking Legal Advice: Instructing a solicitor to guide the case and draft submissions correctly.

Considering Mediation: Mediation helps you reach a voluntary agreement, which eliminates the risk of an unwanted or flawed imposed court order.