M (Children)

In care proceedings, an appellate court does not rehear disputed facts or reassess witness credibility. Its intervention is confined to narrow grounds, including an error of law or disregard of relevant evidence. A finding remains secure where the trial judge has carefully evaluated the evidence and credibility, even if the conclusion is stark or appears unlikely. The appellate court must assess whether the legal approach was wrong, rather than substitute its own view of the facts. Care judges must guard against conclusions resting on insufficient evidence and have regard to the parents’ Convention rights.

The proceedings concerned five children in a family where concerns had arisen about domestic violence and parental control. After the eldest child was diagnosed with gonorrhoea, the children were removed into foster care. During the later care proceedings, she alleged that her father had touched her sexually. Mrs Justice Baron evaluated the scientific evidence, the child’s account, the paediatrician’s evidence and the father’s credibility, and made a care order to the London Borough.

The applicant sought permission to appeal the order of 29 June. The central issues were whether the judge had misdirected herself in law and whether her factual findings were open to challenge on appeal.

Permission to appeal was refused. Lord Justice Thorpe held that the first-instance judge had adopted the correct legal approach and that her factual conclusions were not open to appellate review.

1. Mrs Justice Baron had directed herself in accordance with the relevant authorities, including Lord Nicholls’s speech in H and R and his subsequent speeches in Re U and Re B. She had also kept in mind the warning in Cannings against ill-considered conclusions or conclusions resting on insufficient evidence in care proceedings.
2. She had regard to the parents’ rights under Articles 6 and 8 of the Human Rights Convention. Her stated approach was to interfere with family life only insofar as essential for the protection of the children. There was no basis for alleging a misdirection in law.
3. The findings were founded principally on the consultant community paediatrician’s evidence and the eldest child’s assertions, together with the judge’s rejection of the father’s denials and assessment of his credibility. The appellate court’s function was not to conduct a rehearing.
4. Intervention was confined to relatively narrow grounds, such as an error of law or disregard of relevant evidence. A careful review of evidence and credibility leading to a stark or in some respects unlikely conclusion did not justify interference.

The application had been accelerated because further Family Division proceedings remained pending. The application of 13 July for permission to appeal the order of 29 June was refused.

1. Court of Appeal (Civil Division): In [2006] EWCA Civ 1325, permission to appeal was refused. The court found no error of law or basis to review the factual findings.
2. High Court of Justice, Family Division: Mrs Justice Baron tried the care proceedings and granted a care order to the London Borough. The challenged order was dated 29 June; no citation is stated in the judgment.