K (Children), Re

An appellate court should not finally determine an application where a pending professional investigation may substantially undermine expert evidence forming the basis of the judgment under challenge. The application may be adjourned so that the outcome can be considered and the matter restored if necessary. Applications seeking to expand the appellate process into further hearings are subject to a high threshold. In care proceedings, the protection and advancement of children’s welfare remain the court’s foremost concern, notwithstanding the tragedy of separating children from their parents.

Mr and Mrs K applied for permission to appeal, an extension of time, a stay of execution and permission to rely on further evidence. The application challenged care orders made by Her Honour Judge Andrew in Canterbury County Court on 7 December 2001, committing their two younger children to the care of the local authority and permitting contact to be terminated.

The application was approximately four and a half weeks late. The applicants relied on further material, including complaints concerning the professional methods of Dr Conn, whose expert evidence had materially influenced the disposal decision. The central issue was whether the application should be dismissed immediately or adjourned pending the outcome of the British Psychological Society’s investigation.

Extension of time. The application was approximately four and a half weeks out of time. The delay was attributable to reliance on an outdated county court leaflet explaining appeals. The court therefore placed no reliance on the lateness.

1. Permission threshold. An application seeking to expand the appellate process into further hearings must satisfy the high threshold applied by the Court of Appeal. The judge’s factual findings were comprehensive and had not themselves been challenged. Her disposal decision was supported by the expert evidence of Dr Conn and Mr Flatman, together with the guardian ad litem’s position. On the material then available, dismissal of the permission application was almost inevitable.
2. Children’s welfare. Judges must put the protection of children and the advancement of their welfare first, even where the decision involves the painful separation of children from their parents.
3. Pending investigation. The complaint against Dr Conn created a material possibility that the evidential basis of the 7 December judgment might be undermined in whole or in part if the Investigatory Committee found that his methods were unprofessional or fundamentally flawed. The court therefore declined to dismiss the application immediately.
4. Directions and outcome. The application was adjourned. The applicants were directed to send the Civil Appeals Office the committee’s decision. If the complaint was dismissed, the application would be dismissed. If a substantial adverse finding was made, Mrs K would have the opportunity to restore the application for further argument. The judgment was directed to be transcribed at public expense.

• Court of Appeal (Civil Division): In K (Children), Re [2002] EWCA Civ 848, the application was adjourned pending the outcome of the professional investigation into Dr Conn.
• Canterbury County Court: Her Honour Judge Andrew made care orders on 7 December 2001, committing the two younger children to the care of the local authority and giving it discretion to terminate contact.