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FPR Commentary Update: appeals against consent orders

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Note concerning an update to familyprocedure.com in the light of the President's decision in CS v ACS which provides clarification of the procedure for appeals against consent orders

  • In CS v ACS & Anor [2015] EWHC 1005 (Fam), [2015] WLR (D) 171 (16 April 2015) the President Sir James Munby after full analysis reached the conclusion that a provision of a Practice Direction supporting the Family Proceedings Rules 2010 was ultra vires and thus of no effect.

    The central ratio of the decision is that 'the final sentence in paragraph 14.1 of Practice Direction 30A supplementing FPR Part 30, stating that a consent order made by a district judge could be challenged only by way of an appeal, encroached on the right of a litigant in certain circumstances to apply to the court without first obtaining permission and was therefore ultra vires and should be treated as a nullity.'

    That outcome confirmed the ability of the applicant former wife in the case to proceed by way of variation application in her attempt to challenge on the ground of material non-disclosure a 2009 consent order which had (what would normally be 'finally') disposed of ancillary relief proceedings between her and her former husband. 

    The President's decision has resolved in part at least the procedural equivalent of a Gordian knot which has kept practitioners and the courts tangled for at least a quarter of a century. 

    It has also required revision of the section Applications to vary or revoke a previous order in the Commentary on Part 4 of the FPR available to Hub members on familyprocedure.com. In some supplementary paragraphs the @eGlance editorial team offer revised Commentary to reflect the position as judged by the President, and to highlight those parts of the procedural knot which it may require further judicial (if not indeed legislative) dexterity to untie.

    The update is already available online or you can download the relevant paragraphs using the link on the right..

    Subscribers of @eGlance will receive an update in May.  

    How to access familyprocedure.com
    Log on to the Hub as a paid subscriber, then select 'FPR Commentary' from the 'Browse Contents' drop down at the top of the page.



Published: 22/04/2015

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