D Children, Re (Rev 1)

Permission to appeal out of time in care proceedings should be refused where the delay is substantial, inadequately explained, and materially prejudices the children, particularly where the proposed appeal has limited merit. In assessing the merits, the appellate court must consider the evidential platform as a whole and respect the trial judge’s advantage in evaluating witnesses and primary facts.

At the welfare stage, the court must undertake a holistic and proportionate evaluation of the child’s current risks and all realistic placement options. Adoption may be ordered where the parents cannot provide safe parenting within the child’s timescale and adoption is necessary for the child’s welfare. The court must not treat parental non-acceptance of findings as the sole issue where wider deficits in parenting and family functioning remain.

The parents appealed findings made in October 2013 during care proceedings concerning their children. They also appealed care and placement orders made for L on 27 June 2014 and T on 6 November 2014. Earlier procedural decisions had culminated in orders by HHJ Plunkett setting aside the care and placement orders, but those orders were overturned by the Court of Appeal and the matters were remitted.

The present court had to decide whether to grant permission to appeal the 2013 fact-finding decision out of time and, if so, whether the findings were sustainable. It also had to determine whether the later welfare decisions for L and T were wrong, including whether further assessment or investigation of alleged retractions was required.

1. Permission to appeal out of time. Permission to appeal the October 2013 findings was refused. The parents were approximately 20 months late, had no credible evidential explanation for the delay, and had repeatedly accepted in subsequent proceedings that they could not go behind the findings. The delay had caused serious prejudice in proceedings concerning very young children and made any effective rehearing of the facts exceptionally difficult. Applying FPR 2010, r 4.6 and the guidance in Re H (Children) [2015] EWCA Civ 583, the interests of justice, the absence of promptness and the consequences for the children weighed decisively against relief.

2. The proposed fact-finding appeal also had limited prospects. The District Judge had applied the balance of probabilities, considered the totality of the evidence, evaluated the children’s accounts and the adult witnesses, and was entitled to reject parts of the evidence as exaggerated while accepting the core allegations. The absence of a Lucas direction did not vitiate the decision because lies were not used as direct proof of culpability. The findings were sufficiently linked to significant physical and emotional harm.

3. The appeals concerning L and T were governed by the findings as made. At the welfare stage, the court was required to assess current risk, parenting capacity, the children’s timescales, and every realistic alternative. The District Judge had undertaken that holistic evaluation. Her reliance on the parents’ failure to accept the findings was part of a wider assessment involving chaotic family life, inadequate boundaries, domestic-abuse concerns, poor insight, limited engagement with services and the risk that the parents could not prioritise the needs of infants alongside the older children.

4. The court was entitled to accept the Guardian’s and social workers’ assessments and to conclude that further assessment would not assist or would cause unacceptable delay. Alleged retractions did not require the fact-finding process to be reopened. They were inconsistent and were reasonably viewed as emotional responses to the proposed adoption of L, rather than cogent evidence undermining the original findings.

5. Applying the stringent necessity test under s 52(1)(b) of the Adoption and Children Act 2002, the District Judge was entitled to conclude that L’s and T’s welfare required dispensation of parental consent and placement for adoption. The care and placement orders were proportionate and were not shown to be wrong.

6. All appeals were dismissed. The care and placement orders for L and T remained in force.

1. Court of Appeal: HHJ Plunkett’s orders setting aside the care and placement orders were overturned and the matters were remitted: [2015] EWCA Civ 409.
2. High Court (Family Division): permission to appeal the October 2013 fact-finding decision out of time was refused. The substantive appeals concerning L and T were dismissed.