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Appeal or apply for revocation or variation of a final order? The choice is yours...

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Following hearing the case of CS v ACS & Anor [2015] EWHC 1005 (fam) the President of the Family division declared Paragraph 14.1 of Practice Direction 30A to be ultra vires, the reason being that the rule conflicts with Section 31F (6) of the Matrimonial and Family Proceedings Act 1984 (MFPA).

This case concerned a wife’s application to set aside a final order in financial remedies proceedings, which was made by consent. She sought to set aside the final order on the basis that the husband had failed to disclose material assets. The father opposed the application itself, but significantly he put the case that an appeal was the only way in which a consent order could be challenged.

Paragraph 14.1 of Practice Direction 30A states:

“The rules in Part 30 and the provisions of this Practice Direction apply to appeals relating to orders made by consent in addition to orders which are not made by consent. An appeal is the only way in which a consent order can be challenged.”

Section 31 of the MFPA was varied by Schedule 10 of the Crime and Courts Act 2013, providing for the establishment of the Central Family Court. Section 31F (6) states:

The family court has power to vary, suspend, rescind or revive any order made by it, including

(a) power to rescind an order and re-list the application on which it was made

(b) power to replace an order which for any reason appears to be invalid by

     another which the court has power to make, and

(c) power to vary an order with effect from when it was originally made

Hershman and McFarlane say: (pages E30-32)

"An appeal should usually be lodged to challenge any order of the Family Court that is expressed to be a final order. A first instance court has a limited power to order the rehearing of a matter when the order made was on the basis of some false information. A review or rehearing may be by the original tribunal. The basis for a rehearing by the same tribunal is the same whether the decision was made by a judge or district judge.

A number of the authorities in this section were decided under the previous rules, namely CCR 1981, Ord 37 and RSC 1965, Ord 59. The Family Court now has its own powers to vary, suspend, rescind or revive an order made by it. The extent to which the authorities which were decided under the earlier rules will continue to apply will need to be determined"

The conflict is clear; do litigants need to lodge an appeal or make an application for revocation or variation? The Statue suggests both options are open

Clearly appealing requires permission of the court, but an application to vary or revoke an order does not require permission and thus there are serious implications. It may be that client’s with legal aid, in care proceedings for example, are able to rely on Section 31(F)(6) to apply to revoke a care order, instead of jumping through the hoops, both legal and financial, that they would have to do so in order to lodge an appeal.

When giving judgement in CS v ACS & Anor [2015] EWHC 1005 the president expressed dismay at the unsatisfactory situation, but acknowledged that the Statute must take precedence over the Rules and Practice Directions. He considered the final report of the Financial Remedies Working Group (15 December 2014) and whilst he suggested that the Working group would need to consider what can be solved by a Rule or Practice Direction, in his final remark he alluded to a change in primary legislation being required.