B (A Child), Re

An appellate court should not infer that a trial judge overlooked evidence solely because the judgment does not mention it expressly. The court must consider whether the material was before the judge and the surrounding evidence and findings. A judge who has seen and heard the witnesses may determine allegations of abuse without specialist evidence on their veracity. A party should obtain necessary expert evidence in time and challenge an adverse case-management decision promptly. Applications for permission to appeal must also be made promptly and delay must be adequately explained. Although orders concerning children remain reviewable, finality remains important.

The father sought an extension of time and permission to appeal from an order made by His Honour Judge Cavell at Wolverhampton County Court on 21 September 2001. The order provided that C, aged seven, should live with his mother, allowed limited supervised contact with the father, and required the father to pay costs subject to the protections applicable to a publicly funded litigant.

The father alleged that the mother had sexually abused C. He relied on a video interview which he had made and a later police and social-services Memorandum Interview. He argued that the judge lacked appropriate expert evidence and had overlooked the Memorandum Interview. The central questions were whether the delay should be excused and whether those grounds disclosed an arguable error.

The applications for an extension of time and permission to appeal were refused.

1. Expert evidence. The psychologist’s report had been prepared on joint instructions and was general rather than directed specifically to the allegations. The father could have ensured that the expert was asked to address the child’s demeanour and the apparent likelihood of the allegations. If he considered the refusal of permission for a second expert erroneous, he should have challenged that case-management decision promptly. The first proposed ground therefore had no sufficient merit.
2. Alleged failure to consider the Memorandum Interview. The absence of an express reference in the judgment did not establish that the judge was unaware of or had overlooked the interview. A full report under section 7 of the Children Act 1989 was before the judge, its author gave evidence, and both parties had legal representation. In that context, it was most unlikely that the interview had been wholly ignored. The judge may instead have attached it limited significance because social services had not substantiated the allegations and C was involved in the relationship between his parents.
3. The judge had seen and heard the witnesses. It was open to him to accept the mother’s evidence and find that she had not sexually abused or treated C inappropriately, notwithstanding the child’s allegations in the Memorandum Interview. His acceptance of the social-services evidence, including the evidence concerning C’s relationship with his siblings, supported the residence and contact orders.
4. Delay and finality. The father’s explanations for the 13-month delay were unsatisfactory. There must be finality in children proceedings, even though orders relating to children remain reviewable in the last analysis. In any event, permission would have been refused even if time had been extended.

• Court of Appeal (Civil Division): On 11 October 2002, Mr Justice Bodey refused the applications for an extension of time and permission to appeal: [2002] EWCA Civ 1508.
• Wolverhampton County Court: His Honour Judge Cavell made the order dated 21 September 2001 providing for C’s residence with the mother, limited supervised contact with the father, and costs.