Update | Children: grounds for appeal

Despite increasing pressure for judges to deal with family cases quickly, Re N (A Child) [2012] EWCA Civ 1563 highlights the necessity for judges to manage the process carefully to ensure that the rules of court and right to a fair hearing are not offended.

In this case, McFarlane LJ considered an appeal brought by the parents against orders made by the circuit judge for a care order and placement order in respect of the child at an issues resolution hearing (IRH). At a prior hearing, case management directions were made for the parents to file and serve their response to the local authority's (LA) threshold statement and their final evidence, all of which should have been complied with prior to the IRH.

The parents failed to comply so when the matter came before the IRH, the judge queried their solicitor over the reasons for the non-compliance. The solicitor confirmed that although an appointment had been missed, they had provided instructions and the solicitor was now in a position to draft statements. Having heard briefly from the children's guardian and the LA that both those parties' final evidence was before the court, the judge gave judgment. In doing so she referred to the no delay principle, that the parents had been involved in proceedings previously resulting in orders being granted and their children being adopted. She directed herself to the issue of whether it would be appropriate to proceed in the circumstances or to allow the parents a further opportunity to file final evidence. She explained that the purpose of the IRH was to narrow the issues and make final orders where possible. She was not persuaded by the reasons given by the parents for their failure to attend their solicitor in order to comply with the direction as to final evidence and went on to make a care order, to dispense with the parents' consent to placement for adoption and to make a placement order.

McFarlane LJ in giving the Court of Appeal's (CoA) judgment reminded us of the purpose of an IRH and relevant sections of the practice direction (the Public Law Outline) and explained that it is possible to make final orders at an IRH but there is a spectrum of procedure and so what is permissible will depend on the individual case. In this case however, McFarlane LJ states: 'The court was considering making orders at the most draconian end of the spectrum of orders open to a family court, the permanent removal by adoption of a child from not only the care of his parents, but also legally from their family.'
The overriding objective of the Family Procedure Rules 2010 requires cases to be dealt with justly and fairly which also takes into account article 6 ECHR. There is naturally a line, which is impermissible for the court to go beyond. In this case the judge's approach was on the wrong side of that line.

Grounds to appeal

In Re G (A Child) [2012] EWCA Civ 1408 Ward LJ gave the CoA's judgment on appeals brought by the mother and the LA in care proceedings against findings made about injuries suffered by the child. The trial judge found that that the mother or a young man (AP) who had been staying in the home caused an injury to the child's wrist but went on to say that the marks were relatively minor and should not be regarded as constituting significant harm for the purpose of the threshold criteria. In respect of head injuries, the judge found these to be non-accidental in nature and caused by AP, not the mother. Finally he found that the child's mother had failed to protect the child.

The CoA found that the observation made by the trial judge about the wrist injury not being significant enough to go to the threshold was a 'helpful observation' for a judge, who still had to consider whether the threshold has been crossed, to make. That appeal failed.
The more difficult appeal point was in respect of the perpetrator of the head injury. Ward LJ, having scrutinised the point of appeal and the judge's approach could not criticise the judge's conclusion and how it was reached.
On the matter of failure to protect, again, the CoA could not overturn the finding, it having been correctly made. The children's guardian took issue with the judge stating that the child's mother had a small part of the blame for the child's injuries. The CoA states that the comment was helpful in that it explains that the judge believed that the mother's failure to protect the child by allowing AP to care for the child was a contributing factor to what befell the child although she could not have known that AP would have injured the child as he did.

Practitioners considering launching appeals against findings of fact in care cases, should bear in mind some of the key points from the CoA in this case.

? It must be shown that the trial judge was 'plainly wrong, or misdirected himself, or failed to have regard to any material evidence';

? when a judge hears a case and believes one of the parties, which is a matter of credibility, then 'it is extremely difficult, if not nigh impossible, to challenge that finding of credibility for such it is';

? Tomlinson LJ in agreeing with the lead judgment of Ward LJ said: 'Appeals against the findings made by a judge in a fact-finding exercise should in my view be rare and are not to be encouraged.';

? a further comment from Lewison LJ reminds practitioners that it is the trial judge's job to decide between conflicting evidence and theories about what happened and that he was not required to recite all the evidence in giving judgment as though summing up to a jury; and

? Ward LJ concluded with some criticism of the management of the case by the LA. He explains that lawyers advise as lawyers, not social workers. It is the lawyers who take the decision whether the facts are, or are likely to be, established such that they amount to significant harm. 'It is not a social worker question, it is a legal question' for lawyers to answer.

Fettering cross-examination

Re J (A Child) [2012] EWCA Civ 1231 was an appeal brought on a few grounds but was particularly interesting for the point it raises for advocates in family proceedings. The facts were somewhat detailed as the litigation between the parents in respect of the issues of residence and contact started in 2003 and had continued throughout and to date save for two periods within that time. A pattern had emerged where contact between C and F would be in place and things would carry on smoothly for a period, contact would then become problematic and the matter restored to the court. Following a hearing, contact would be ordered (sometimes by consent) and then contact would start again, and so forth.

At a hearing in May 2012 F's counsel had started to cross-examine M. The aim of the hearing was to reach arrangements for the future of contact however, F's counsel was clear that the line of questioning was being pursued on the basis that it was important to establish with M what had happened in the past which led to breaks in contact, F's position being that there was no good reason for needing to establish new contact arrangements as there was nothing necessarily problematic with what had ?gone before.

The recorder curtailed the cross examination process which Munby LJ, in giving the CoA's judgment, said had denied F, and therefore C, a fair hearing. He continued with a salutary reminder to first instance judges: 'A judge does well to think twice if, as here, his intervention is met by counsel standing her ground and carefully explaining why she wishes to cross-examine in a particular way, especially if, as here, counsel's reasons have obviously been carefully considered and are not just 'off-the-cuff'... It is a pity that the recorder did not, even at that point, see any reason to change his mind.'

Premature refusal of contact

A section 34(4) CA 1989 order was made in respect of two children (C). It was that order, permitting the LA to refuse contact between the Ps and the C which concerned McFarlane LJ on appeal in Re H-T (Children) [2012] EWCA Civ 1215. The point raised by the Ps was that the refusal of contact at the interim stages within proceedings was based on a concluded view of what would be found at the fact finding hearing about the C's injuries. The judge had made ?various comments which led the Ps to ?have that impression.

McFarlane LJ explained what, even in seemingly tragic cases, is required of family justice: 'Family cases are organic. Cases of this sort where something appalling has apparently happened need the parents to have some limited space to understand and come to terms with what has happened and the court should at least entertain the hope, if not expectation, that the parents may change their position and move forward in a way that allows the prospect of rehabilitation to be open for the best interests of the children at a later stage in the proceedings. In my view, the judge was led into predetermining issues which were not before him.'