M (Children)

In care proceedings, positive developments or fresh evidence arising after the disposal hearing do not, without more, justify permission to appeal or reopening clear findings made by the trial judge. Where parental credibility is seriously damaged and claimed changes are too recent or insufficiently established to remove identified risks, the Court of Appeal may refuse permission. A local authority must implement the care plan. A fundamental and massive failure to do so, together with continuing positive parental developments, may permit an application to discharge the care order; a minor or insubstantial failure to meet the timetable is insufficient.

The parents sought permission to appeal an order made by Bracewell J on 27 March 2002 concerning the future of their two surviving children. The proceedings followed the death of another child, for which the parents were prosecuted and sentenced at the Old Bailey. After a preliminary fact-finding hearing, the judge concluded that the parents had deceived professionals, that their credibility was seriously damaged, and that their claimed changes were too recent to establish a sufficient change in circumstances. The parents relied on developments after the hearing, including further professional assessment, improved co-operation, reunification, dietary evidence and continuing contact. The central issue was whether those matters justified admitting an appeal and reopening the judge’s findings and reasoning.

1. Permission refused. Lord Justice Thorpe considered the judge’s findings to be clear and decisive. The parents had persisted in misleading professionals, their credibility could not be accepted without external confirmation, and their apparent changes were too recent to establish their depth. The judge found that the principal concerns and risks remained. On those findings, the order committing the children to another family was inevitable.
2. The subsequent matters relied upon by the father did not justify admitting the case to the Court of Appeal or reopening the findings and reasoning below. They included a psychiatric assessment, sustained co-operation with professionals, the parents’ reunification, their continuing vegetarian diet, fresh evidence concerning packaged foods, continuing contact with the children, and concerns about the children’s identity. The Court of Appeal therefore had no basis to grant permission.
3. Lord Justice Thorpe added that the local authority was obliged to implement the care plan. If there were a fundamental and massive failure to implement it, coupled with continuing positive developments in the parents, they could apply to discharge the care order. A minimal or insubstantial failure to achieve the timetable would not suffice.

1. Court of Appeal (Civil Division): On 26 June 2002, Lord Justice Thorpe refused the parents’ application for permission to appeal. The decision is reported at [2002] EWCA Civ 1044.
2. High Court of Justice, Family Division: Bracewell J made the disposal order on 27 March 2002, committing the two children to another family following the earlier fact-finding hearing.