W (A Child), Re

Permission to appeal in care proceedings should be refused where the proposed appeal has no real prospect of success and would cause substantial delay and uncertainty in the life of a very young child. Appeals are ordinarily brought against orders, not findings of fact in isolation, although findings may be challenged where they determine the outcome of a split hearing. A proposed challenge to findings chiefly relevant to later children does not ordinarily justify delaying the existing child’s proceedings. Hearsay evidence is admissible in children’s cases, but may carry less weight because it has not been tested by cross-examination. Fresh evidence should not be admitted where it cannot realistically affect the existing child’s outcome.

The mother sought permission to appeal, an extension of time and permission to adduce fresh evidence against a care order and care plan for adoption made by His Honour Judge Bernstein in the Liverpool County Court on 6 November 2000. The application was made eight months out of time. The proposed appeal principally challenged findings that the mother had intentionally interfered with the child’s breathing and had switched off an apnoea alarm. The mother also relied on a scientific report concerning possible genetic susceptibility to sudden infant death, which was said to bear on the interpretation of earlier family history. The central issues were whether the delay should be extended, whether the factual findings had a realistic prospect of being overturned, and whether the fresh evidence could justify disturbing the child’s progress towards permanence.

1. Applications refused. The court refused an extension of time, permission to appeal and permission to adduce fresh evidence. No order as to costs.
2. Time was of absolute importance for a child of such a young age. An appeal would introduce delay and uncertainty and should not be permitted unless the proposed grounds were strong.
3. Appeals are generally brought against orders rather than findings of fact in isolation. As explained in Re B (Split hearing: jurisdiction) [2000] 1 FLR 344, a factual appeal may be entertained after the fact-finding stage of a split hearing where those findings determine the later order. That reasoning applied with much less force where the proposed appeal was chiefly relevant to subsequent children.
4. The judge was entitled to rely on the combined evidence, including the nursing evidence, medical evidence, physical marks, the alarm incident and the mother’s conduct. The absence of cross-examination affected the weight of the hearsay evidence, but did not make it inadmissible. Hearsay was admissible in children’s cases irrespective of the Civil Evidence Act 1995.
5. Earlier findings were not binding on a later court dealing with younger children if subsequent evidence cast doubt on the bearing those findings should have in the later proceedings. That principle was stated in Re B (Minors) (Care Proceedings Issue Estoppel) [1997] Fam 117.
6. The scientific report might be relevant in future proceedings concerning later children, but could not realistically affect the outcome for the child in these proceedings. The court was unwilling to halt the child’s progress for a retrial and further investigations undertaken only to challenge the earlier finding.

• Court of Appeal (Civil Division): refused the mother’s applications for an extension of time, permission to appeal and permission to adduce fresh evidence against the Liverpool County Court’s care order and care plan.
• Liverpool County Court: His Honour Judge Bernstein made the care order and approved a care plan for adoption on 6 November 2000.