K (Children), Re

In exceptional children proceedings, the constraints ordinarily governing fresh evidence on appeal may be applied flexibly where justice and the child’s welfare require it. The court must nevertheless give substantial weight to finality and to the prejudice caused by delay.

A re-hearing may be justified where fresh evidence could reasonably enable a parent to be excluded as a possible perpetrator of non-accidental injury, and where the earlier findings resulted from a continuing conspiracy of silence. Orders freeing children for adoption, where they have neither been placed nor adopted, should not operate as a technical bar to reopening the issue. The welfare evaluation includes the public interest in identifying perpetrators and the child’s interest in knowing the truth.

The mother sought permission and an extension of time to appeal findings made in care proceedings concerning A, and consequential care and freeing-for-adoption orders concerning A and her younger sister M.

HH Judge Garner had found that A suffered serious non-accidental injuries while in the shared care of the mother, father and paternal grandmother. He could not exclude any of them as a possible perpetrator and found that they had concealed the truth. At the later disposal hearing, Mr Peter Collier QC made care orders and freed both children for adoption.

After leaving the family household, the mother produced statements alleging control and abuse within it, retracting aspects of her former evidence and advancing a different account of A’s care. The central issue was whether that material should be admitted and the perpetrator issue reopened despite delay and the freeing orders.

1. Appeal allowed. The court granted permission to appeal, set aside the orders freeing A and M for adoption, substituted interim care orders, and remitted the identity of A’s perpetrator for further investigation and reconsideration.

2. The court accepted that the ordinary appellate principles in Ladd v Marshall [1954] 1 WLR 1489 are applied flexibly in the family jurisdiction. Flexibility does not undermine the usual need for finality, especially where delay may prejudice children. It permits the court to deal justly with unusual circumstances affecting a child’s welfare.

3. The mother’s new evidence met the necessary threshold. It might reasonably lead, at a re-hearing, to her exclusion as a possible perpetrator. The court did not decide the facts or identify another perpetrator. Those were matters for the trial judge.

4. Justice required the issue to be revisited. The earlier position left three possible perpetrators, two willing and one unwilling participant in a conspiracy of silence. The public interest in identifying the person responsible for serious injury, and the children’s interest in knowing the truth, were powerful considerations. The mother’s cultural dependency, youth, lack of English and asserted separation from the father’s family provided a context in which her delayed disclosures should not be devalued merely because they emerged gradually.

5. The court applied the delay principle in section 1(2) of the Children Act 1989, but held that delay did not outweigh the justice and welfare considerations. Neither child had been placed for adoption, and the re-hearing could take place promptly. A realistic prospect of reunion with the mother was itself a significant welfare consideration.

6. The freeing orders did not justify a technical refusal to reopen the issue. A care order could otherwise have been challenged under section 39 of the Children Act 1989; the court would have been required to entertain the application and could receive the material. The outcome of the re-hearing remained entirely open. The mother was warned that any prospect of reunion depended on complete candour.

1. Court of Appeal (Civil Division) — In [2004] EWCA Civ 1181, the court granted permission to appeal, allowed the appeal, set aside the freeing-for-adoption orders, made interim care orders and remitted the perpetrator issue.

2. High Court — On 20 April 2004, Mr Peter Collier QC, sitting as a deputy judge of the High Court, made care orders for both children and freed them for adoption.

3. Leeds District Registry — On 11 December 2003, HH Judge Garner found that A had suffered serious non-accidental injuries and that the mother, father and paternal grandmother could not be excluded as possible perpetrators.