H (A Child), Re

An application for permission to appeal based on fresh evidence should be adjourned where the evidence may materially affect the trial judge’s assessment or support a retrial, but the other parties are absent. The matter should be relisted promptly on notice. Where a successful appeal could require a retrial in child proceedings, the court should take account of the potential prejudice caused by delay and may need to abandon an existing disposal fixture.

The applicant sought permission to appeal from a five-day trial in the Family Division before Mr Justice Johnson. The application was initially made without notice. New material disclosed by the Crown Prosecution Service revealed that the child had been interviewed, although the interview had not been disclosed during the proceedings. The applicant argued that the interview could materially affect the judge’s assessment of the child’s reported accounts and that the fresh evidence founded a claim to a retrial. A further complaint concerned the judge’s failure to refer expressly to agreed witness statements. The local authority, guardian and mother were not present. The central question was whether the application could properly be determined immediately or required an adjournment on notice.

1. Adjournment required. The fresh evidence was capable of founding a submission that the applicant was entitled to a retrial. The Court of Appeal could not properly determine the application in the absence of the other parties to the Children Act proceedings. The application was therefore adjourned for prompt relisting on notice to the local authority, the guardian and the mother.
2. Future hearing. The next hearing was to determine both the application for permission and, if permission were granted, the appeal itself. A three-judge constitution and a time estimate of one and a half hours were directed.
3. Urgency and the child’s welfare. The issue required swift determination because a successful appeal could lead to a retrial and require abandonment of the provisional fixture for deciding the child’s future. Delay in determining the child’s circumstances could be highly prejudicial.
4. Other evidential complaint. The complaint that the judge had not referred to the agreed statements of Tania Plant, Hilary Harold and Patrick Simon was recognised, but was provisionally regarded as less significant than the fresh evidence. The local authority would need to explain why the memorandum interview had not been disclosed. Costs were reserved.

• Court of Appeal (Civil Division): The application for permission to appeal was adjourned and ordered to be relisted on notice. The merits of the appeal were not determined.
• Family Division: The underlying proceedings followed a five-day trial before Mr Justice Johnson. No citation for the judgment is stated.