B (A Child), Re

An appellate court will rarely interfere with primary findings of fact. Intervention is confined to cases where there was no evidence, the evidence was misunderstood, or no reasonable judge could have reached the conclusion. A fair-trial challenge based on communication difficulties must be assessed against the whole conduct of the hearing, including notice of allegations, access to evidence, legal assistance, judicial support and the witness’s ability to answer. In care proceedings, welfare must be considered on the broad canvas of all findings and circumstances. Positive parenting matters, but cumulative deterioration and fabricated illness findings must also be weighed. Such findings do not automatically require complete severance of the parent-child relationship.

These care proceedings concerned EB, a child born in August 2012. On 10 October 2014, Her Honour Judge Finnerty made care and placement orders. The mother appealed, seeking to set aside those orders, obtain fresh neurological or neuropsychological evidence, and have the case reheard before a different judge.

Permission was granted by Gloster LJ after an oral application based on alleged unfairness, lack of access to the evidence, inadequate notice of the allegations and communication difficulties. On the full appeal, the issues were whether the mother had known and been able to answer the case against her, whether evidence concerning EB’s squint undermined the findings of fabricated symptoms, and whether the welfare analysis justified adoption.

1. Appeal dismissed. The findings of fact and the welfare determination were not susceptible to challenge. No fresh expert evidence or rehearing was required.
2. The Court of Appeal applied the approach stated in Re B [2013] UKSC 33. An appellate court hearing a first appeal will only rarely interfere with primary findings of fact. Intervention is justified where the conclusion was unsupported by evidence, based on a misunderstanding of the evidence, or one which no reasonable judge could have reached. None of those conditions was present.
3. The trial was fair. The allegations were identified in the threshold schedules, investigated through jointly instructed experts and addressed by the mother’s legal teams. The papers and medical records were available. The transcripts showed that the judge allowed breaks, clarified matters and enabled the mother to answer the questions. Her communication difficulties did not significantly hamper her ability to deal with the case. Difficult and testing cross-examination did not become unfair or aggressive.
4. The evidence that EB had a squint did not undermine the findings that the mother had fabricated more serious symptoms concerning EB’s sight and reactions to light. The squint was known to the parties and experts. The later recommendation of surgery was irrelevant to the issues determined at trial.
5. Findings of fabricated symptoms did not inevitably require complete severance of the relationship. The welfare decision had to be made on the broad canvas of all the findings and circumstances. Positive parenting was relevant, but so were the mother’s deteriorating behaviour, the cumulative history and the impact on EB. The judge had sufficient information to conclude that adoption was in EB’s best interests.
6. Lady Justice King, supported by Lord Justice McFarlane and Lord Justice Patten, endorsed the good-practice guidance in paragraph 52 CPD 19 of the Civil Procedure Rules 1998. In care cases, particularly where the appellant is a litigant in person, a local authority should ordinarily file a respondent’s statement for an oral permission application.

1. Court of Appeal (Civil Division): The appeal against the care and placement orders was dismissed on 4 September 2015.
2. Court of Appeal permission stage: Gloster LJ granted permission after an oral application. The full court considered that permission might not have been granted had the respondent’s evidence and submissions been available at that stage.
3. York County Court and Family Court: Her Honour Judge Finnerty made care and placement orders on 10 October 2014 after a ten-day trial.