C (Children), Re

Family appeals are ordinarily conducted by way of review, not rehearing. A rehearing under rule 30.12 of the Family Procedure Rules 2010 is exceptional and requires special features making review unjust. The appellate judge must respect the advantages held by the tribunal that heard the evidence, particularly in assessing credibility and a parent’s prospective ability to care for children. An imperfect transcript does not justify a rehearing where the appeal can fairly be argued by reference to the lower court’s reasons and other evidence. An appellate judge should not receive a witness’s evidence afresh merely to make an independent assessment and then carry adverse findings into a subsequent rehearing. A confused process combining review and rehearing may be unfair and require the orders to be set aside.

The mother appealed orders made by His Honour Judge Parker in care proceedings concerning two young children. The local authority had appealed lay justices’ supervision orders, arguing that their decision was wrong and that they had failed properly to evaluate the mother’s evidence against the professional evidence.

Because the transcript of the mother’s evidence before the justices was incomplete, Judge Parker directed her to give oral evidence afresh during the appeal. He allowed the local authority’s appeal, made adverse findings about the mother, and directed a further rehearing before himself. He later refused recusal and refused an application for an independent social work report. The central issues were whether the appeal should have been conducted by rehearing, whether the process was fair, and what consequential order should follow.

1. The appeal was allowed. The orders made by Judge Parker in connection with the local authority’s appeal were set aside, and the matter was returned to the Family Court for the appeal to be determined afresh.
2. Rule 30.12 of the Family Procedure Rules 2010, like rule 52.11 of the Civil Procedure Rules 1998, establishes review as the ordinary form of appeal. Oral evidence is ordinarily not received. A rehearing is permitted only where, in the circumstances of the individual appeal, the interests of justice require departure from that rule.
3. The authorities, including In re B (A Child) [2013] UKSC 33, show that rehearing is exceptional. The appeal court must respect the advantages of the tribunal that heard the evidence, including its assessment of credibility, primary facts and the implications of evidence for future parenting. In a child case that advantage is especially important.
4. The imperfect transcript did not make a rehearing necessary. The local authority’s appeal did not depend on particular words used by the mother. The judge should instead have considered whether the existing transcript, counsel’s notes or other material sufficiently enabled the appeal to be argued by review.
5. By hearing the mother afresh and substituting his own findings, the judge bypassed the justices’ evaluative assessment of her evidence. The resulting process contained elements of both review and rehearing, and carrying adverse findings from that partial rehearing into the later final hearing was unfair. The application for a further independent social work report was left to the judge managing the continuing first-instance proceedings.

1. Court of Appeal (Civil Division): appeal allowed; the orders made in the local authority’s appeal were set aside and the appeal was remitted to the Family Court for determination afresh.
2. Warrington County Court and Family Court: His Honour Judge Parker allowed the local authority’s appeal against supervision orders made by lay justices, directed a further rehearing, refused recusal, and refused an application for an independent social work report.
3. Family Court lay justices: made supervision orders on 29 October 2015 in relation to the two children.