A (Children)

On a renewed application for permission to appeal findings in the first limb of care proceedings, the Court of Appeal emphasised that an appellate court does not rehear factual disputes or reassess witness credibility. Permission should be refused where the trial judge had material capable of supporting the findings and the proposed appeal had no real prospect of success.

Expert evidence is not invariably required to assess a child’s credibility or a video interview. Its necessity depends on the issue and the judge’s expertise. Evidence directed to attachment, parenting effects and the children’s future welfare may be relevant at the final disposal stage, but not necessarily to the threshold fact-finding hearing.

Leeds brought care proceedings concerning two boys, RA and DA, under the Children Act 1989 section 31 threshold. At a 12-day first-limb hearing, HHJ Cahill made findings of poor parenting, neglect, domestic violence, leaving the children alone and locking them in rooms. She held that the threshold criteria were satisfied and gave directions for the final welfare hearing.

The parents sought permission to appeal. Permission was refused on paper by Wilson LJ, and the parents renewed their applications. They complained principally that the judge had relied on RA’s video interview without expert assistance and had failed to address a psychologist’s report. The central issues were whether the findings were properly open to the judge and whether the missing evidence justified an adjournment or appellate intervention.

1. Applications refused. The renewed applications for permission to appeal were refused. The first hearing concerned fact-finding and the section 31 threshold, not the final decision about the children’s welfare or placement.
2. The responsibility for placing the schedule of findings and the relevant interview transcripts before the court lay with the appellants and their advisers. An adjournment was refused because the omissions were their responsibility, the judge’s findings were clear, and an adjournment risked jeopardising the final hearing. The absence of a written statement required by paragraphs 4.14A and 4.17 of the Practice Directions to Part 52 also required compliance to be confirmed before assessment of the publicly funded appellant’s costs.
3. The judge was entitled to assess RA’s video interview without expert evidence. Re N Child Abuse Evidence [1996] 2 FLR 214 did not establish that expert evidence was invariably required where a child’s credibility was in issue. This case concerned physical abuse and neglect, involving straightforward factual questions rather than the more difficult credibility issues that may arise in sexual-abuse cases. The judge tested RA’s allegations against the wider evidence and was entitled to find a reliable core.
4. Credibility was for the judge, not an expert. The psychologist’s report concerned attachment, the effects of parenting and separation, Down’s Syndrome, behaviour and future welfare. It was principally relevant to the final disposal stage. Although a reference to the report might have been preferable, its omission did not invalidate the threshold findings.
5. The trial judge had heard substantial evidence and had given detailed reasons for her credibility findings. The Court of Appeal does not find facts or rewrite a trial judge’s conclusions. Where there was material on which the judge could properly reach her findings, the proposed challenge could not succeed.
6. The threshold findings did not determine whether the children would eventually return to their parents. That question remained for the final welfare hearing.

• Court of Appeal (Civil Division) — [2007] EWCA Civ 110: renewed applications for permission to appeal refused.
• Leeds District Registry — HHJ Cahill, 20 December 2006: findings of fact made, the threshold under section 31 of the Children Act 1989 held satisfied, and directions given for the final hearing.
• Court of Appeal — Wilson LJ refused permission to appeal on paper on 20 December 2006; the applications were renewed before the present court.