B (Children)

A Court of Appeal may grant permission to appeal to the House of Lords in an exceptional case raising difficult and important issues, even where the substantive appeal is conceded and dismissed. Existing binding authority may prevent the Court of Appeal from reopening the underlying legal principles, but does not prevent a further appeal seeking their reconsideration. The judgment therefore determined the matter procedurally and did not resolve the substantive questions concerning unresolved allegations in care proceedings.

Medway local authority began care proceedings following a section 37 direction amid private-law proceedings. Charles J found the section 31 threshold crossed in several respects but could not decide, on the balance of probabilities, whether the father had sexually abused his 15-year-old stepdaughter. He directed experts to proceed on the basis that the abuse and associated risks were not established, while treating the allegations as unproved background. The father appealed and sought a leapfrog appeal. At the hearing, the appeal was conceded as doomed under existing authority, but permission was pursued because the underlying law was said to require review. The central issue was whether permission should be granted for the House of Lords to consider those difficult and important questions.

1. Disposition. The appeal was dismissed on the applicant father’s concession. The application for permission to appeal to the House of Lords was granted.
2. The underlying dispute arose from an inconclusive fact-finding decision. Charles J found the statutory threshold crossed in several respects but could not determine whether the alleged sexual abuse had occurred. His proposed instructions required experts to proceed on the basis that the abuse and associated risks had not been established, while taking the unproved allegations into account as background. The resulting directions were complex and internally difficult to reconcile.
3. The difficulties engaged the trilogy of authorities comprising Re H and R [1996] 1 FLR 80, Lancashire County Council v B [2000] 1 FLR 589 and Re O and N, Re B [2003] 1 FLR 1169, together with the decision in M and R. Thorpe LJ considered that the Court of Appeal was bound by those authorities and could not itself reopen the governing principles or give inconsistent guidance.
4. Nevertheless, the court held that the issues were sufficiently difficult and important to justify the unusual grant of permission. The written submissions were capable of constituting submissions to the House of Lords. Wilson LJ and Black J agreed. The court made no substantive ruling on whether the existing principles should be changed.

• Court of Appeal (Civil Division) In [2008] EWCA Civ 282, the appeal was dismissed on concession and permission to appeal to the House of Lords was granted.
• Principal Registry of the Family Division Charles J conducted a fact-finding hearing and later gave directions for the preparation of the welfare hearing. The judgment dates stated in the supplied text were 19 October and 11 December 2007. No separate citation is stated.