L (A Child), Re

In child-care litigation, marked delay in seeking permission to appeal may justify refusing an extension of time, particularly where the child’s circumstances have materially changed. The court should also consider the prospects of permission had the application been made promptly. Where the proposed appeal concerns factual issues conscientiously and fairly analysed by an experienced trial judge, permission is unlikely. The combination of weak appellate prospects, substantial delay and the changed position of the child may make an extension inappropriate even where the applicant retains some residual doubt about the trial decision.

A local authority sought a care order concerning a child nearly 13 years old. The application was supported by the guardian ad litem and opposed by Mrs L, the child’s father and Mrs L’s father. Sumner J, sitting in the Family Division at Cardiff, conducted a complex trial involving medical evidence and parental responsibility, and made judgment and consequential orders.

Almost three years later, Mrs L applied personally to the Court of Appeal for permission to appeal. The central issues were whether time should be extended and whether there was a sufficient basis for permission in circumstances where the challenge concerned factual findings and the child’s circumstances had materially changed.

Lord Justice Thorpe refused the application for permission to appeal. The delay was almost three years. During that period the circumstances of the child, N, and the wider context had materially changed. That passage of time was a particularly important consideration in a case concerning a child.

1. The proposed appeal was highly unlikely to obtain permission even if the application had been made promptly. The issues at trial were factual. They had been properly analysed by an experienced specialist judge after a complex hearing involving extensive medical and other expert evidence.
2. The trial judge had dealt with the issues conscientiously, fairly and with compassion. The Court of Appeal therefore found no sufficient basis for reopening the factual analysis through an appeal.
3. The applicant’s sincere belief that she and her daughter had suffered injustice was acknowledged, but it was a subjective view and could not displace the court’s objective assessment of the judgment and the prospects of appeal.
4. Even if there had been some residual doubt, the court would have been extremely reluctant to exercise its discretion to extend time after such marked delay in a case where the child’s situation had changed. The application was accordingly refused, bringing the available remedies in the domestic courts to an end.

1. Court of Appeal (Civil Division): In [2001] EWCA Civ 1494, Lord Justice Thorpe refused Mrs L’s application for permission to appeal and declined to extend time.
2. High Court of Justice, Family Division: Sumner J, sitting at the Swansea District Registry, made judgment and consequential orders following the care-order proceedings.