L (A Child)

Permission to appeal a welfare decision will be refused where the proposed grounds merely challenge an evaluative choice supported by the evidence. A finely balanced welfare decision is especially resistant to appellate intervention. Where more than one option is reasonably open, choosing one does not make the decision wrong. A child’s wishes and feelings require high-order consideration, but must be assessed in the context of family dynamics, influence and risks of harm. Case-management decisions about expert evidence attract a wide margin of discretion. Earlier factual findings remain effective unless set aside on fresh evidence or overturned on appeal.

Mrs Justice Parker made final care orders for two children after care proceedings concerning their parents and maternal grandparents. The mother and the grandparents each sought permission to appeal. Their proposed grounds concerned expert evidence, the 26-week timetable, threshold findings, the separate assessment of the children, the weight given to the older child’s wishes and feelings, and the refusal to revisit the welfare decision before the orders were made.

The applications arose from the High Court judgment reported at [2017] EWHC 3171 (Fam). The central question was whether any proposed ground had a reasonable prospect of success.

Lord Justice McFarlane gave the judgment, with Lord Justice Kitchin agreeing. Permission to appeal was refused on both applications.

1. Expert evidence and case management. Decisions about whether to instruct an additional expert or adjourn proceedings are case-management decisions attracting a wide margin of discretion. An appellate court should not interfere without clear evidence of an error of principle or grounds for holding the decision plainly wrong. The refusal of one application was justified because no distinct expertise had been identified. The other was made too late and was directed towards possible therapy rather than a necessary new expertise. The 26-week timetable had not compromised the fairness or effectiveness of the hearing.
2. Welfare evaluation. Under the welfare checklist in the Children Act 1989, s 1(3), a child’s wishes and feelings require high-order consideration. They must nevertheless be assessed in the context of the child’s maturity, family dynamics, influence and the risks of harm. The judge had properly considered the older child’s genuine wish to live with her grandparents, while concluding that returning her there carried a greater risk of emotional harm. The evaluation was balanced and supported by the evidence.
3. Appellate restraint. Where the evidence supports either of two welfare options, an appeal cannot succeed merely because the case was close or the appellate court might have selected the alternative. The outcome must be shown to be one which the evidence could not support.
4. Review and earlier findings. A substantive welfare determination may be reopened before final orders only in exceptional cases. The delay between the hearing and the orders created an opportunity to seek review, but refusal was within the judge’s discretion because the reported instability was of the type already anticipated, reopening would cause further delay, and the appellate process was already underway. Unappealed factual findings from earlier proceedings continued to stand unless set aside in light of fresh evidence or overturned on appeal. The proposed later evidence did not undermine the judge’s welfare conclusions. The possible ADHD diagnosis in relation to the younger child was immaterial because the decision concerning him rested on the mother’s inability to provide safe and consistent care.

The grandparents’ proposed appeal and the mother’s proposed appeal therefore had no reasonable prospect of success. The Court noted that the Children’s Guardian intended to apply under Children Act 1989, s 39 to discharge the care order, but that application was not determined.

• Court of Appeal (Civil Division) — permission to appeal refused in both applications: [2018] EWCA Civ 238.
• High Court — Mrs Justice Parker made final care orders concerning both children: [2017] EWHC 3171 (Fam).