H (A Child). Re

On an application for permission to appeal in care proceedings, the Court of Appeal does not rehear the evidence or substitute its own view of the facts. It asks whether the judge made an error of law or exercised the broad family-law discretion outside the permissible ambit, so that the conclusion was plainly wrong or not properly open on the evidence. Findings of fact are made on the balance of probabilities, even where the same matters are subject to criminal investigation or proceedings. Findings made in related family proceedings may be admissible in later proceedings and may be challenged there. Where the threshold is met and rehabilitation within the child’s timescale is not possible, the judge may consider care and adoption orders. Permission is granted only where the appeal has a real prospect of success or there is some other compelling reason for it to be heard.

SH, the father of DH, sought permission to appeal out of time against orders made by HHJ Thompson. DH had previously been made subject to an interim care order in favour of Suffolk County Council. On 2 September 2009 the judge made a full care order and a placement order under section 21 of the Adoption and Children Act 2002. An earlier application concerning the interim care order had been refused on paper and was not renewed.

The father challenged the judge’s findings, including findings derived from proceedings concerning DH’s half-brother, the assessment evidence, text messages and the parents’ capacity for rehabilitation. The central issues were whether the judge had erred in law or acted outside the permissible ambit of discretion, and whether the proposed appeal met the permission threshold.

1. Permission and appellate function. The father’s time for filing the appellant’s notice was extended because he was acting in person. Permission was nevertheless refused under rule 52.3(6) of the Civil Procedure Rules 1998: the proposed appeal had no real prospect of success and disclosed no other compelling reason for an appeal.
2. The Court of Appeal’s task was limited to reviewing the decision below for an error of law or an exercise of discretion outside the permissible ambit. The question was whether the conclusion was not properly open to the judge on the material before him or was plainly wrong. The appellate court does not rehear oral evidence or interfere merely because the appellant, or the appellate judge, might have reached a different conclusion. Credibility findings were for the trial judge.
3. Findings in family proceedings are made on the civil standard, the balance of probabilities. The criminal standard does not apply. The same facts may therefore support an acquittal in criminal proceedings and a finding in care proceedings. The different purposes, evidential rules and standards of proof explain that result. This approach was supported by Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35, reported at [2009] 1 AC 11.
4. The interim care order stood unappealed and could not be challenged in this application. The judge was entitled to use findings made in proceedings concerning the child’s half-brother in the later care proceedings, subject to their being admissible and open to challenge. The judge was also entitled to take account of expert discussions and changes of opinion, and to accept the findings concerning the parents, the text messages and the inability to achieve rehabilitation within the child’s timescale.
5. Obiter, the court observed that the judge had, if anything, set the bar too high for the local authority by citing and relying on Re L [2008] 1 FLR 575, referring to subsequent observations in Re L-A (Children) [2009] EWCA Civ 822.
6. The judge had been entitled to find the threshold criteria under section 31 satisfied and, once that threshold was met, to consider and make care and adoption orders. There had been no procedural irregularity or breach of the father’s ECHR rights. The application for permission to appeal was refused.

• Court of Appeal (Civil Division): Permission to appeal was refused against HHJ Thompson’s orders dated 2 September 2009 and 27 October 2009.
• First-instance family proceedings before HHJ Thompson: DH was made subject to a full care order and a placement order on 2 September 2009. An earlier interim care order dated 21 November 2008 had not been successfully appealed.