A (A Child), Re

An appellate court should not interfere with trial findings of fact merely because it would assess the evidence differently. Strong material is required to show that the conclusion was outside the range reasonably open to the trial judge and plainly wrong. A Scott Schedule is a case-management agenda and may record allegations arising from evidence given by non-party witnesses. At the interim stage, the threshold under the Children Act 1989 may be assessed by reference to recent findings and current potential emotional harm. Compulsory removal remains subject to a high hurdle, but the conventional approach may require adjustment where the judge has recently conducted extensive fact-finding.

The proceedings concerned A, a 12-year-old child subject to ongoing care proceedings. Her father, Mr E, sought permission to appeal against an interim care order placing A in the interim care of West Sussex County Council, restricting family contact to supervised contact and making an exclusion order, and against the trial judge’s comprehensive fact-finding judgment.

Because of Mr E’s chronic health condition, the permission applications were determined on the written material after an intended oral hearing could not proceed. The proposed appeals challenged the weight and interpretation of evidence, the use of a Scott Schedule, alleged bias and discrimination, procedural fairness, the interim threshold, and the choice between placement with a family member and foster care. The central issue was whether either proposed appeal had a reasonable prospect of success.

Permission to appeal was refused in relation to the fact-finding judgment and dismissed in relation to the interim care order.

1. Fact-finding and appellate restraint. The complaints principally concerned the weight assigned to evidence and the trial judge’s interpretation of a complicated evidential picture. A trial judge who has observed witnesses over an extended hearing is in an infinitely better position than an appellate court to evaluate their evidence. Very strong material is therefore required before an appellate court can conclude that findings were outside the conclusions reasonably open to the judge and were plainly wrong. Mr E’s detailed written criticisms did not meet that standard.
2. Scott Schedule. A Scott Schedule is a convenient case-management tool establishing the agenda for the hearing. It may record allegations arising from evidence given by non-parties where those witnesses are properly called and their evidence is heard. The inclusion of such matters did not create unfairness in the circumstances.
3. Judicial language and alleged bias. A judge has a duty to express an opinion on the evidence and may describe a party’s relevant behaviour and presentation. Judge Cryan’s strongly expressed assessment was relevant and necessary to the fact-finding exercise, was supported by the evidence and provided no basis for a bias or discrimination appeal.
4. Interim threshold. The threshold under section 38 of the Children Act 1989 was properly assessed by reference to the fact-finding conclusions and the potential for current emotional harm arising from the father’s reaction to the judgment, his reduced co-operation with social workers and the assessment process. There was no reasonable prospect of successfully challenging the finding that the interim threshold was met.
5. Welfare and removal. The court recognised the high hurdle before compulsory removal at an interim stage. The judge nevertheless had to choose between placement with the child’s adult relative and partner and foster placement, balancing the competing welfare considerations. The adverse findings concerning the proposed family placement and the risk of continuing exposure to the father’s dominant personality were legitimate considerations.
6. Appellate challenge. The case was unusual because the judge had recently conducted extensive fact-finding and possessed detailed knowledge of the family. It was therefore unnecessary to measure the interim decision against the conventional model of an early care application made on limited information. The decision was finely balanced, but both options were open to the judge and fell within the proper exercise of his discretion.

• Court of Appeal (Civil Division) determined the father’s applications for permission to appeal on the written material and refused permission in relation to the fact-finding judgment and the interim care order.
• High Court of Justice, Principal Registry of the Family Division His Honour Judge Cryan made the interim care order on 25 May 2011 and handed down the fact-finding judgment on 26 May 2011.