C (A Child), Re

On a second appeal, permission may be granted where a compelling reason exists, including a procedural irregularity making the first appeal unfair. An appellate court reviewing a child-welfare decision must have the evidence needed to assess the alleged error, including relevant transcripts of oral evidence. It must critically appraise the whole evidential picture and respect the first-instance judge’s advantage in evaluating evidence and future care arrangements. That advantage is especially strong in child cases. A care order does not compel a placement order. Where the appellate record is inadequate, the court should not substitute its own factual assessment or make a placement order, but should give appropriate directions or remit the matter.

The mother sought permission for a second appeal against Keehan J’s decision of 7 June 2013. He had allowed the local authority’s appeal from District Judge Simmonds, who had made care orders but refused a placement order concerning S.

The parents were unrepresented before Keehan J. The appeal bundle omitted transcripts of evidence and other material available to the district judge. Keehan J nevertheless allowed the appeal and made a placement order. The central issues were whether the first appeal had been procedurally fair, whether the district judge’s findings could properly be overturned, and whether the appellate court had sufficient evidence to make a placement order.

Disposition. Macur LJ, with Aikens LJ and the President of the Queen’s Bench Division agreeing, granted permission and allowed the mother’s appeal. The placement order was set aside, an interim care order was substituted, and the matter was remitted to District Judge Simmonds.

1. Second appeal. Under CPR 52.13, the proposed appeal did not raise an important point of principle or practice, but the significant procedural irregularity provided another compelling reason for the Court of Appeal to hear it. The first appeal had been unfair because the appellate materials were materially incomplete.
2. Appellate record and review. An appellate court cannot properly assess an allegation that a first-instance judge misconstrued or misunderstood evidence without the materials necessary to evaluate that allegation. The missing transcripts were particularly important because oral evidence could supplement or alter the picture presented by written statements and reports. Submissions about the foster carers’ position could not be elevated into evidence without giving the parents an opportunity to challenge them.
3. Appellate caution in child cases. The principle in Piglowska v Piglowski [1999] 1 WLR 1360, including the reasoning drawn from Biogen Inc v Medeva plc [1997] RPC 1, applies not only to credibility and primary facts but also to the evaluation of those facts. The caution is stronger in cases concerning a child’s future because the family judge assesses future parenting and care arrangements through direct engagement with the evidence. Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 and In re B (A Minor) (Adoption: Natural Parent) [2001] UKHL 70 reinforced the need for appellate courts to avoid merely paying lip service to that principle.
4. Application. The transcript supported District Judge Simmonds’s account of Dr Bourne’s evidence. His judgments were comprehensive and disclosed no demonstrable error of law. A judge making a care order is not obliged also to make a placement order. The appellate court had neither the evidence nor the reasoning required to substitute its own assessment or make a placement order. The care plan was inadequate and had to be clarified by a revised plan, with judicial oversight before any final care order.
5. Procedure and costs. A post-judgment email seeking to dispute the judge’s analysis and reopen argument was inappropriate. Communications about the terms of an order may be made if invited and copied to all parties, but advocates should not seek private reconsideration. The local authority’s failures made the appeal necessary and were unreasonable. The court ordered it to pay the mother’s costs in the sum of £22,756.68, notwithstanding its reliance on London Borough of Sutton v Davis (Costs) (No 2) [1994] 1 WLR 1317.

1. Court of Appeal (Civil Division): On 6 February 2014, permission was granted and the mother’s appeal was allowed. The placement order was set aside, an interim care order was substituted, and the matter was remitted for a revised care plan and judicial oversight.
2. Principal Registry (Family Division): Keehan J allowed the local authority’s appeal from District Judge Simmonds and made a placement order on 7 June 2013.
3. District Judge, Principal Registry: District Judge Simmonds made care orders and refused a placement order on 22 February 2013. Following a further hearing on 4 March 2013, he maintained that the care plan justified refusing the placement order.