D (A Child) (Appeal Out of Time), Re

Permission to appeal out of time may be granted where the court considers all relevant circumstances, including the length and explanation of delay, compliance with procedural rules, responsibility for default, the parties’ interests and the child’s welfare. The prospects of the proposed appeal may also be relevant. An appeal should be allowed where the decision below was wrong or unjust because of a serious procedural irregularity.

An expert may assist the court by identifying features relevant to the reliability or authenticity of a child’s account, but cannot determine where the truth lies. That remains the responsibility of the judge. In an adversarial fact-finding hearing, counsel for one party should not be expected to cross-examine an expert on behalf of an opposing unrepresented party where the expert’s evidence is central.

The father appealed against findings made by District Judge Greensmith in 2015 that he had sexually abused his daughter. His notice of appeal was filed approximately three years and five months late. He therefore sought relief from sanctions and permission to appeal out of time.

The proposed appeal challenged the lower court’s treatment of expert evidence, the fairness of the hearing, the reopening of earlier findings and newly disclosed material. The mother opposed the applications. The child’s Guardian supported them. The central questions were whether the delay should be excused and whether the lower court’s findings were wrong or rendered unjust by serious procedural irregularity.

1. Outcome. Relief from sanctions was granted, permission to appeal out of time was granted, the appeal was allowed, and the finding that the father had sexually abused the child was set aside. The matter was remitted for rehearing by a High Court judge of the Family Division. No view was expressed on whether the abuse had occurred.
2. Under FPR 2010 rules 4.5 and 4.6, the court had to consider all the circumstances. Relevant matters included the length and explanation of the delay, whether the default was intentional, compliance with other rules, responsibility for the default, the effect on the parties and the child, and the interests of the administration of justice. The delay was exceptional, but was not intentional. The father’s partner had undergone serious cancer treatment and he had probably been badly let down by his solicitors. The substantial merits and welfare consequences of permitting an unsafe finding to stand were also relevant.
3. Under FPR 2010 rule 30.3(7), there were compelling reasons for hearing the appeal and a serious risk that it would succeed. Under rule 30.12(3), the decision was wrong and unjust because of serious procedural irregularity.
4. The lower court had misunderstood the effect of the earlier fact-finding judgment and treated the expert’s assessment as establishing the truth of the allegations. Applying A London Borough Council v K [2009] EWHC 850 (Fam), an expert could assist with features relevant to a child’s account but could not determine veracity or the ultimate facts. The judge had to decide those matters himself.
5. The expert had misunderstood the factual findings on which his assessment was based. The lower court nevertheless treated his evidence as the prime evidence and stated that it could depart from his opinion only for good reason. That approach was legally erroneous. The problem was compounded by the absence of effective cross-examination on the expert’s methodology and fundamental misunderstanding.
6. It was plainly wrong to suggest that counsel for the mother could cross-examine the expert on behalf of the father. The parties’ positions were directly opposed. Given the centrality of the expert evidence, the procedure adopted caused injustice. The late disclosure of important material further supported the conclusion that the findings were unsafe.
7. The reasoning in Re M (Fact Finding burden of proof) [2013] 2FLR 874 was relevant: the absence of a satisfactory benign explanation did not, without more, establish a malevolent explanation or reverse the burden of proof.

• High Court (Family Division): The appeal from the decision of District Judge Greensmith was allowed. The finding of sexual abuse was set aside and the matter was remitted for rehearing.