AM v Local Authority & Anor

Permission to appeal in a family case requires an arguable error of law or an arguable case that the judge’s discretion was exercised plainly wrongly, outside the generous ambit of reasonable disagreement. The Court of Appeal is a reviewing court and will not intervene merely because it might have reached a different welfare decision. In child cases, the judge has a broad discretion to choose between imperfect solutions. Physical safety may properly receive priority in the welfare balance where the evidence shows risks of abduction, serious injury or death. Conflicting expert evidence remains for the judge to evaluate: experts advise, but judges decide. A reasoned choice between competing expert opinions is not an appellate error.

The appellant was the father of three children who had been removed from the family home after findings concerning arson, domestic violence, threats and a wider family conspiracy. The High Court made findings against the mother and members of her family, but initially found that the father had not participated in the conspiracy.

A later finding concluded that the father had been involved in an attempt to discover the children’s foster placement and had tried to deceive the court. The High Court ultimately made final care orders, authorised the refusal of parental contact, and approved long-term fostering with the existing white, non-Muslim foster carers. The father sought permission to appeal, arguing that further assessments and a culturally and religiously appropriate placement were required. The central issue was whether the judge’s welfare decision was arguably plainly wrong or otherwise outside the proper exercise of discretion.

The Court of Appeal refused permission to appeal.

1. Under Civil Procedure Rules 1998, permission required a real prospect of success or some other compelling reason for the appeal to be heard. In family cases, the applicant had to show an arguable error of law or an arguable case that the judge’s discretion was plainly wrong, outside the generous ambit within which reasonable disagreement was possible. The authorities included Bellenden (Formerly Sattherthwaite) v Satterthwaite, G v G and Clarke-Hunt v Newcombe: [1948] 1 All ER 143, [1985] 1 WLR 647 and (1983) 4 FLR 482.
2. The appellate court was a court of review. It did not normally find facts, rehear oral evidence or substitute its own assessment merely because it might have reached a different conclusion. The judge’s broad discretion in child welfare cases permitted a reasoned choice between two or more unsatisfactory solutions.
3. The judge was entitled to give priority in the welfare equation to the children’s physical safety. The findings demonstrated an exceptionally high risk extending from abduction and physical or emotional harm to death. The judge was entitled to reject both immediate and deferred placement with the father, and to reject placement in a Muslim household, having regard to the evidence concerning safety, availability and the risks of family pressure.
4. The judge had sufficient material before him and was entitled to refuse further assessments. Where expert evidence conflicted, it was for the judge to decide which evidence to prefer. Provided adequate reasons were given, rejecting the psychologist’s evidence in favour of the cultural expert, guardian and other evidence was not an appellate error.
5. The ancillary orders followed from the welfare conclusion. The application for permission to appeal was refused.

In a postscript, Wall LJ stated that conduct described as honour killings should be identified as sordid criminal behaviour. Cultural or religious terminology could not alter the treatment in English law of arson, domestic violence and threats of abduction or death.

• Court of Appeal (Civil Division): Refused the father’s application for permission to appeal. The decision is reported at [2009] EWCA Civ 205.
• High Court (Family Division), Leeds District Registry: His Honour Judge Walsh made final care orders for the three children, authorised the refusal of parental contact, refused applications concerning the children’s names, and imposed an order under section 91(14) of the Children Act 1989.