M (Children)

Permission to appeal findings of fact is exceptional. The Court of Appeal will not lightly interfere with findings reached after a lengthy hearing involving credibility assessments and a careful judgment. However, permission may properly be granted where fresh evidence materially undermines central evidence, a criminal acquittal raises serious anxiety, and professionals question whether an injustice may have occurred. No single circumstance, including an acquittal, is necessarily decisive. A full appeal may be required because the permission stage cannot provide the detailed scrutiny needed to unravel a complex fact-finding case. A challenge to a child-welfare decision may also have a real prospect of success where the judge failed to address a potentially enduring personality disorder relevant to future care, concentrating instead on depression.

The father sought permission to appeal several decisions of the Bristol County Court. The principal finding, made after a five-day hearing, was that he had assaulted the mother by cutting her wrist and that the injury was not self-inflicted. His applications to reopen that finding on fresh evidence were refused. The care proceedings were later dismissed because the threshold was not crossed, and a residence order was made in favour of the mother.

Meanwhile, the father had been acquitted after a criminal trial. The applications concerned whether the fresh evidence, the acquittal and concerns raised by professionals created a sufficient prospect of injustice to justify appellate scrutiny, and whether the judge had adequately considered the mother’s mental condition when deciding the children’s future.

1. Permission granted. All applications were granted in relation to the orders under challenge.
2. The Court will not lightly grant permission to appeal findings of fact, particularly where an experienced judge has heard substantial evidence over several days and has given a lengthy judgment founded significantly on assessments of credibility.
3. This was nevertheless an exceptional case. Fresh evidence appeared to show that one important alleged admission could not have occurred as described and therefore cast serious doubt on central evidence relied upon by the judge. The mother’s evidence had also been subject to significant challenges. The short criminal acquittal, together with the anxiety expressed by professionals, including the local authority, created a real risk that an injustice had occurred. The acquittal alone would not necessarily have justified permission.
4. At the permission stage the Court could not undertake the detailed scrutiny required to unravel the fact-finding issues. In the exceptional circumstances, a full Court of Appeal should examine whether the findings remained justified in light of the further evidence and the jury’s verdict, and should also consider the later judgment concerning the children.
5. The challenge to the residence order had a real prospect of success because the judge was said not to have properly addressed whether the mother suffered from a personality disorder which could permanently affect her ability to care for the children. His reasoning concentrated on depression and its possible recurrence. The Court did not determine that issue finally, but considered it sufficiently arguable to warrant permission.

1. Court of Appeal (Civil Division): On 21 August 2009 the Court granted all applications for permission to appeal: [2009] EWCA Civ 1573.
2. Bristol County Court: Findings of fact were made on 10 December 2008; applications to reopen them were refused on 4 March and 15 July 2009; and on 5 August 2009 the care proceedings were dismissed and a residence order was made in favour of the mother.