J (A Child), Re

On an application for permission to appeal, the Court of Appeal will rarely interfere with a trial judge’s findings of fact, particularly findings based on credibility, because the trial judge has the advantage of seeing and hearing the witnesses. The same restraint applies to a properly founded exercise of a broad discretion. Permission should be refused unless the applicant demonstrates a clear and serious error warranting appellate intervention.

Natural parents applied under section 10 of the Children Act 1989 for permission to issue a section 8 application seeking contact with their 13-year-old daughter. The child had been placed for adoption after an investigation into alleged sexual abuse within the family, and the parents’ consent to the adoption order had been dispensed with.

The county court judge found no fundamental change in circumstances and rejected the parents’ evidence about continuing contact, preferring the adoptive mother’s evidence. The parents sought permission to appeal, alleging injustice and seeking to regain contact with the child. The central issue was whether any sufficiently clear and serious error had been shown to justify permission.

1. Application refused. The Court of Appeal dismissed the application for permission to appeal.
2. The county court judge had correctly directed himself on the approach required under section 10 of the Children Act 1989. His finding that the adoptive parents’ separation did not amount to a fundamental change of circumstances was a finding open to him on the evidence.
3. The challenge to the evidence involved a direct conflict between the parents and the adoptive mother. Credibility assessment is primarily the task of the trial judge, who has the unrivalled opportunity to see and hear the witnesses. The Court of Appeal will not interfere with such fact-finding except in the most exceptional circumstances.
4. The trial judge was also exercising a broad discretion. Appellate interference with a properly founded exercise of discretion is rare. The absence of a transcript, together with the fact that the matter had been fully contested over two days with legal representation, reinforced the need for a clear and serious error before permission could properly be granted.
5. The applicants’ asserted injustice and belief that the trial decision might be wrong did not demonstrate an appealable error. The court’s function was to determine whether sufficient error had been shown to justify permission, not to substitute its own view of the justice of the case.

• Court of Appeal (Civil Division): application for permission to appeal dismissed.
• Reading County Court: His Honour Judge Elly refused the parents’ application under section 10 of the Children Act 1989, after finding no fundamental change of circumstances and rejecting their account of continuing contact.