M (A Child), Re

On a renewed application for permission to appeal in care proceedings, the Court of Appeal may admit fresh evidence where it appears capable of materially undermining a challenged finding. The court may take a provisional view of the evidence without deciding its authenticity, completeness, ethical implications or ultimate weight. A transcript of a secretly recorded conversation may therefore justify permission to appeal while those matters remain for the substantive appeal. If the appeal later succeeds, substitution of the appropriate finding may be preferable to remittal where a further fact-finding hearing would cause disproportionate expense and delay.

Poole Borough Council brought care proceedings concerning a young child. In a fact-finding and threshold hearing, the recorder found numerous allegations against the father established, including an allegation of rape, and held that the threshold under section 31 of the Children Act 1989 was crossed.

Wall LJ refused permission to appeal on paper. The father renewed his application and sought leave to adduce four statements concerning a secretly recorded conversation with the mother. The transcript appeared to contain admissions undermining the rape finding. The central issues were whether the statements should be admitted as fresh evidence and whether permission to appeal should be granted.

The renewed application was granted. The Court of Appeal granted leave to adduce four statements as fresh evidence and granted permission to appeal against the finding that the father had raped the mother.

1. Materiality of the fresh evidence. The statements concerned a recorded conversation in which, on its face, the mother appeared to make unequivocal admissions that the allegation accepted by the recorder was false. The new material was sufficiently important that it could make the appeal incapable of sensible resistance.
2. Provisional assessment. The court accepted, for the present purpose, the apparent general accuracy of important parts of the transcript. It did not decide whether the mother’s voice was genuine, whether the recording had been doctored, whether the transcript was complete or verbatim, or what weight should ultimately be given to any admissions. The ethical implications of the father’s secret recording were likewise left for consideration at a later stage.
3. Possible final disposal. If the appeal ultimately succeeded, the court indicated that it would prefer, if possible, to substitute a finding that the allegation had not been established, rather than remit the issue for another fact-finding hearing. The observation was expressly hypothetical.

The mother was directed to file a statement answering the fresh evidence by 21 May 2009, subject to an application on paper for an extension. The psychiatric report submitted with the statements was not pursued.

1. Court of Appeal (Civil Division): The renewed application was granted. Leave to adduce four statements as fresh evidence and permission to appeal were granted, with directions for the mother’s response.
2. Court of Appeal (Civil Division): Wall LJ had refused permission to appeal on paper.
3. Bournemouth County Court: On 5 December 2008, the recorder made findings in care proceedings, including that the allegation of rape was established, and held that the threshold under section 31 of the Children Act 1989 was crossed.