D (Children), Re

In preliminary care proceedings, the judge’s primary task is to decide whether, when proceedings commenced, the children were suffering harm or were at risk of harm. Particular findings of fact are ancillary to that threshold question.

A judge is not required to analyse every submission, inconsistency or conflict in lengthy oral evidence. The essential task is to identify the realities of the case and make clear findings, especially on the credibility and reliability of the adults. An appellate court should not entertain a complex factual challenge based on alleged errors or misunderstandings where the overall conclusion is clearly supported by primary credibility findings.

The local authority applied for care orders concerning two children. Her Honour Judge Case, sitting in the Newport County Court, conducted a preliminary hearing on the Children Act section 31 threshold and made adverse findings concerning the children’s parents and the risk posed to the children.

The parents applied for permission to appeal, alleging that the judge had failed to analyse inconsistencies and conflicts in the evidence sufficiently. The central issue was whether the judgment was adequately reasoned and whether the factual conclusions were open to the judge after hearing extensive oral evidence.

1. Applications refused. Lord Justice Thorpe delivered the principal judgment. Lord Justice Buxton agreed, and Mr Justice Moses agreed. The court therefore unanimously refused permission to appeal. There was no order for costs save the usual assessments.
2. The hearing was a preliminary determination of the Children Act section 31 threshold, not a trial of either parent. The judge’s primary responsibility was to determine whether the children were suffering harm or were at risk of harm at the commencement of proceedings. The detailed findings made in reaching that conclusion were ancillary, although they remained open to challenge in an appropriate appeal.
3. A judge is not required to analyse acutely every submission advanced by counsel or every asserted or possible inconsistency in six days of oral evidence. That is particularly so where the evidence includes testimony from young children affected by their experiences. The essential judicial task is to get to the heart of the matter, determine the realities, and make clear findings. Assessment of the credibility and veracity of the adult parties is often central to that task.
4. The appellate court would not entertain a complex factual appeal based on an alleged error or misunderstanding of particular evidence where the overall conclusion was abundantly supported by primary findings of credibility and reliability. The judge had heard the principal witnesses at length, observed them directly, explained why she reached her conclusions, and made findings that were wholly open to her.
5. Arguments which might have had force in criminal proceedings did not justify permission in the context of these care proceedings.

• Court of Appeal (Civil Division): Applications for permission to appeal were refused, with no order for costs save the usual assessments: [2002] EWCA Civ 526.
• Newport County Court: Her Honour Judge Case made the order dated 21 December 2001 following a preliminary hearing on the Children Act section 31 threshold.