M (Children), Re

In complex care proceedings, an appellate court should respect the trial judge’s evaluation of evidence where the judgment, read as a whole, shows that the relevant issues were considered. A judge need not mention every submission or fact expressly. A judge may approve a care plan differing from the guardian’s recommendation if the welfare assessment is explained. Approval of a plan is not a final determination of adoption where a later freeing application is required. Where a judgment appears mistaken about what parties agreed, the ordinary course is to refer the matter back to the trial judge for clarification or correction. An apparently over-absolute risk finding may likewise be corrected as a slip where the underlying findings establish only a possible risk.

Extremely complex care proceedings concerning a highly dysfunctional family were determined after a lengthy trial before His Honour Judge Heppel QC in the Kingston upon Hull County Court. The judge approved care plans, including contact arrangements and a plan for the youngest child, D, which provided for adoption if an adoptive placement was found within six months and long-term fostering otherwise.

Mrs M sought permission to appeal against the contact arrangements and the care plan. Older J and older D sought permission to challenge findings concerning sexual activity and the risks they posed. The central issues were whether the judge had misunderstood the parties’ agreement, whether he was entitled to differ from the guardian, and whether the factual and risk findings were open to him.

The applications for permission to appeal were dismissed unanimously. Lord Justice Thorpe gave the principal judgment, and Mr Justice Neuberger agreed.

1. In relation to contact, the judge had proceeded on the understanding that the parties had agreed the arrangements if reunification was not ordered. If that understanding was mistaken, the proper course was to return to the trial judge, who could determine the disputed issue or correct the apparent mistake. An appeal was not the appropriate course in the circumstances. Mr Justice Neuberger confirmed that, save in unusual cases, an apparent mistake about what parties had agreed should be referred back to the judge rather than pursued at the cost and delay of an appeal.
2. The trial judge was entitled to differ from the guardian’s recommendation that D should be placed in long-term foster care, provided that he explained his welfare assessment. He had done so in paragraphs 101 to 105. The approved plan did not require adoption come what may. It provided for long-term fostering if an adoptive placement could not be identified within six months. Any adoption proposal would also require a subsequent freeing application, which would be contested.
3. The factual findings were not realistically challengeable. The judge had evaluated the children’s evidence and Dr Mabbott’s expert evidence, including the relevant inconsistencies and cross-examination. An appellate court should assess a complex judgment and the evidence as a whole. It should not infer that every fact or submission omitted from express discussion was overlooked.
4. Because the judge could not identify whether older J or older D had perpetrated the abuse, findings that they posed a risk in the present tense expressed the conclusion too absolutely. The findings would have been fairly expressed as establishing that each might pose a risk. The error was a correction of tense which could be raised with the trial judge as a slip, and did not justify admitting the matter to the full appellate process.

The transcript was to be provided at public expense. Costs were to be assessed in accordance with the applicable Community Legal Service costs regulations.

1. Court of Appeal (Civil Division) dismissed the applications for permission to appeal against the orders and findings made below.
2. Kingston upon Hull County Court, before His Honour Judge Heppel QC, conducted the care proceedings, approved the care plans and made the challenged factual and risk findings.