D (Children), Re

Family appeals must follow Part 30 of the Family Procedure Rules 2010. They require clear grounds, a permission stage and, where permission is granted, a properly notified substantive hearing. A litigant in person may need explanation and assistance, but lack of representation does not justify ignoring the rules. If a court identifies a new ground or appeal target, it must ensure that the notice is amended with permission and that the parties can respond.

Re W (Children) (Family Proceedings: Evidence) [2010] UKSC 12 does not impose a free-standing obligation in every case to determine whether a child should give oral evidence. The balancing exercise is good practice. Failure to record it does not alone establish a breach of Article 6. Fairness must be assessed in the context of the proceedings as a whole.

Birmingham City Council appealed from HHJ Plunkett’s decision of 5 December 2014. He had granted the parents permission to appeal and allowed their appeals against care orders and placement for adoption orders concerning L and T, setting aside the orders made by District Judge Maughan.

The local authority challenged both the procedure by which the parents’ appeals had been conducted and the conclusion that the district judge was legally obliged to consider whether the older children should give oral evidence. The Court of Appeal therefore considered the requirements governing family appeals and the effect of Re W (Children) (Family Proceedings: Evidence) on the fairness of the fact-finding process.

Disposition

McFarlane LJ, with Moore-Bick LJ and Vos LJ agreeing, allowed the local authority’s appeal on both grounds. HHJ Plunkett’s order was set aside. The parents’ appeals concerning L and T were to be reheard before a different tribunal.

1. Appeal procedure. Part 30 of the Family Procedure Rules 2010 establishes three core stages: grounds of appeal, permission to appeal and determination of the appeal. These requirements provide clarity and fairness. They are not empty formalities. If a new appeal target or ground emerges, the notice should be amended with the court’s permission and the parties must know the issues to be decided and have an opportunity to address them.
2. The lower court’s process departed radically from that structure. The parents’ notice contained no proper grounds, appeared to challenge later orders rather than the 2013 fact-finding decision, and was substantially out of time. The judge developed a new ground during an unstructured hearing, did not make clear whether he was deciding permission or the substantive appeal, and did not invite submissions on the point on which he ultimately allowed the appeals. The process was therefore neither fair nor effective.
3. A litigant in person may require additional explanation and judicial assistance, but that status does not justify relaxing or ignoring the ordinary appellate structure. The approach in R (Dinjan Hysaj) v The Home Secretary [2014] EWCA Civ 1633 applied equally to family appeals.
4. Evidence from children. Re W describes a balancing exercise involving the benefits that oral evidence may bring to determining the truth and the harm it may cause to the child’s welfare. Its endorsement of addressing the issue at an early case-management hearing is good practice, not a legal obligation to undertake an elaborate evaluation in every case. The approach does not make children routine witnesses, as recognised in Re B (Child Evidence) [2014] EWCA Civ 1015.
5. The absence of a recorded determination about oral evidence did not, by itself, establish an Article 6 breach or make the fact-finding hearing unsafe. The issue had to be assessed as part of the proceedings as a whole, and the court should reach a concluded view about whether the children should have been called before deciding that the hearing was unfair. The permission granted below stood, and the parents’ appeals were to be reheard.

Appeal history

1. Court of Appeal (Civil Division) — The local authority’s appeal was allowed. HHJ Plunkett’s order was set aside, and the parents’ appeals concerning L and T were remitted for rehearing before a different tribunal.
2. Birmingham Family Court — On 5 December 2014 HHJ Plunkett granted permission to appeal and allowed the parents’ appeals, setting aside the care orders and placement for adoption orders.
3. Birmingham County Court — District Judge Maughan made the relevant fact-finding determination in October 2013 and later made final orders concerning L and T in June and November 2014.