A (a child) and M (a child), Re

On an appeal against care orders, the appellate court reviews the first-instance decision, not events occurring after the order. It asks whether the judge complied with the rules, made findings open to the evidence, and reached a welfare conclusion within the proper exercise of discretion. Where those conditions are met, the appellate court cannot interfere. Complaints about subsequent contact arrangements or changed circumstances should be taken back to the first-instance judge by applications to discharge or vary the orders. Permission should be refused where the proposed appeal has no prospect of success.

The mother sought permission to appeal against care orders made by HHJ Hughes in Watford County Court on 14 September 2007, following judgment on 12 September 2007. The orders placed two children in the local authority’s care, with care plans for each to live with her respective father, and provided limited maternal contact.

She did not challenge the judge’s conclusions on the evidence then available. Her complaint was that the local authority had presented inaccurate or perjured evidence, and that contact had subsequently broken down. The Court of Appeal, constituted by Lord Justice Wall, considered whether there was any arguable error in the judge’s findings or welfare discretion and whether later developments could found an appeal.

Application refused. Lord Justice Wall concluded that there was no prospect of a successful appeal.

1. The appellate court’s function was to review what the first-instance judge had done. It had to consider whether the rules had been obeyed, whether the findings were open to the judge on the evidence, and whether the welfare conclusion was properly reached in the exercise of discretion. If those conditions were satisfied, the Court of Appeal could not interfere.
2. The first-instance judge had heard extensive evidence, including expert and guardian evidence, and had observed the mother and witnesses under cross-examination. He made clear findings about domestic conflict, the children’s emotional harm, parenting difficulties and the suitability of the proposed placements. Lord Justice Wall held that the threshold criteria under section 31 were satisfied and that the judge was entitled to conclude that the children should live with their respective fathers under care orders.
3. The mother’s allegations that the evidence was fabricated or perjured amounted to disagreement with findings made after a full hearing. They did not identify an appealable error. The judge had been entitled to accept and reject evidence as he did.
4. Later difficulties with maternal contact were matters for the judge who made the orders. The mother’s remedy was to apply to discharge the care orders or vary the contact arrangements. The proceedings remained capable of further review, including assessment of the mother’s role in the children’s lives.
5. As the proposed appeal had no prospect of success, permission was refused. A transcript of the judgment was directed to be prepared at public expense for the mother.

• Court of Appeal (Civil Division): In [2008] EWCA Civ 137, Lord Justice Wall refused permission to appeal.
• Watford County Court: HHJ Hughes made care orders on 14 September 2007, following judgment delivered on 12 September 2007. The children were placed in the local authority’s care, with care plans for residence with their respective fathers.