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Home > Judgments > 2012 archive

K (Children) [2012] EWCA Civ 1433

Application by imprisoned parents for permission to appeal against care orders in respect of their three children and a placement order in respect of the youngest child. Permission refused.

Parents sought permission to appeal care orders made in respect of N [aged 14], S [aged nearly 12] and NA [aged 6] and a placement order made in respect of NA. The care plan for the two older children was long term foster care and an order was made pursuant to section 34 (4) of the Children Act 1989 allowing the local authority to refuse contact between the children and the parents. Further, the court also made an order under s91(14) of the Act, restricting the parents' right to challenge this in the future.

Both parents were serving sentences of imprisonment for offences of assault against the children. Both parents acted in person.

The threshold and welfare outcomes were challenged by the parents. At the time of the fact-finding hearing the parents had already been convicted of the offences of assault against the children. The court of first instance could have relied on the criminal convictions but instead the judge embarked on a fresh trial without reference to the criminal proceedings because the parents sought to appeal the criminal convictions and the judge wanted the findings to be independent of the criminal proceedings. Hedley J said that the judge was entitled to take this course of action in the circumstances and therefore this was not a relevant issue of an appeal or an application for permission to appeal.

Hedley J considered HHJ Parry's judgment and the close scrutiny to which she subjected the evidence of the children, including the fact she had identified a number of areas of weakness in the evidence and the way it was obtained. HHJ Parry found that the evidence of the children was accurate and reliable on crucial and central facts and found that the threshold was met.

Hedley J sets out at paragraphs 11 and 12 the relevant test for granting permission to appeal. He went on to consider the findings of fact made and was satisfied that the findings made were unassailable. Hedley J said that the findings were ones that HHJ Parry was entitled to make on the evidence and the prospect of the Court of Appeal disturbing them was 'frankly outside reality'.

In respect of the welfare outcomes, N and S had both expressed the view that they wished to live away from their parents and the parents accepted that the situation could not change unless and until the views of the children changed.

The central concern of the parents was the making of a placement order in respect of NA. Again Hedley J found that this was an order well within the generous ambit of HHJ Parry's discretion. The making of the order was founded on the evidence and her analysis of the NA's welfare. Therefore, there was no realistic prospect of Court of Appeal overturning the placement order.

Summary by Mai-Ling Savage, Barrister, 14 Gray's Inn Square
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Neutral Citation Number: [2012] EWCA Civ 1433
Case No: B4/2012/1471

IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

Royal Courts of Justice
Strand, London, WC2A 2LL
7th November 2012

B e f o r e :
The Hon. Mr. Justice Hedley
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K (Children) 
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Both parties "in person"

Hearing dates : 25th October 2012
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HTML VERSION OF JUDGMENT

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Crown Copyright ©

The Hon. Mr. Justice Hedley :
1. This is an application by two parents for permission to appeal against the judgment and order of Her Honour Judge Parry in the Swansea County Court. The order was made on 19th April 2012.

2. Both parents are presently serving sentences of imprisonment. The application was made by split screen video conferencing from their respective prisons. Each parent addressed me courteously but with feeling as to why the Judge was wrong particularly in relation to the youngest child. In addition the father had supplied the court with copious observations on the judgment and the facts of the case. I was able to re-assure him that his handwriting was sufficiently legible for my use.

3. These proceedings concern three children: a boy N (aged 14) and two girls S and NA, aged respectively nearly 12 and 6. The effect of the Judge's order was to remove all three children from their parents. In the case of N and S they were to remain under a care order on long term foster care with an order under Section 34(4) of the Children Act 1989 authorising the local authority to refuse contact between them and their parents; moreover the parents' right to challenge that in the future was made subject to an order under Section 91(14) of the Act. In respect of NA, however, the judge not only made a care order but thereafter a placement order under Section 22 of the Adoption and Children Act 2002 thus opening the way to NA's placement for adoption.

4. Both threshold issues and welfare outcomes were in dispute in this case. Although slightly out of logical order, let me deal with the welfare outcomes of N and S straight away. Both parents accept that at present both N and S wish to live away from home and do not wish to see their parents. They also accept that that situation cannot change unless and until the views of the children (or either of them) change. Given that both parents are also currently serving sentences of imprisonment and given that the judge's findings of fact are sustainable (which the parents of course do not accept), then the orders made by the judge are not only orders that she was entitled to make but they were, in relation at least to the care and contact orders, in reality the only order that she could make.

5. Thus I must turn to consider the judge's findings of fact. In essence the judge found that N and S had repeatedly been victims of physical abuse essentially through excessive and unjustified physical punishment from the father of which the mother had full knowledge and in which she was accordingly complicit. The judge found that there were no realistic prospects for change. The judge also found that the parents sought to manipulate proceedings by general intimidation of all those involved in the proceedings.

6. There was an unusual aspect of the findings of fact hearing. By then the parents had already been convicted of the offences for which were currently serving sentences of imprisonment. Those offences were indeed of assault upon these children and thus this case would be in effect a re-run of the criminal proceedings. Ordinarily no judge would have embarked on a fresh trial but would have relied on the criminal convictions. This judge, however, decided to hear these matters without reference to the criminal proceedings because, since the parents had sought to appeal the criminal convictions, she wanted there to be findings independent of those proceedings.

7. That was a very unusual course to take in my experience but one which was certainly open to the judge. As its only consequence could be to benefit the parents by giving them a second chance to justify themselves, it cannot be relevant to the issue of an appeal or an application or permission to appeal.

8. It is instructive to note how the judge structured her judgment. She subjected the evidence of the children (which, unlike in the criminal trial, was not given orally) to the closest scrutiny. She rightly identified a number of weaknesses in both the evidence and the process by which it had been obtained. She directed herself impeccably on the relevant law. She then concluded that she was satisfied as to the truth of a number of matters which taken together amply satisfied the threshold criteria for intervention under Section 31(2) of the Act.

9. It was at that point that the judge went on to make other findings including those adverse to the parents, which merely strengthened the view that she had already formed of the evidence of the children. Those findings included matters which led the judge to find that these parents had introduced side issues with a view to manipulating the proceedings.

10. The father has put in long written submissions describing and amplifying his complaints about the order and judgment of HHJ Parry. In the course of the parents' submissions to me, the following essential complaints were identified–

They i) They were not allowed to respond adequately to allegations about specific behaviour in the case;

ii) the children were evasive in their evidence;

iii) their legal representatives did not properly follow instructions;

iv) the police were lying in the CARA document;

v) not all the evidence that they required was called.

vi) The judge was wrong to conclude that the parents (or either of them) were incapable of change.

The result is that they challenge the Placement Order in respect of NA of the basis that they should have a further opportunity to demonstrate that they are able to care for her and that, they contend, is what NA herself wishes.

11. Permission to appeal will only be granted in a case such as this where there are reasonable grounds giving some realistic prospect of success. In order to evaluate that, it is important to consider the proper role of the Court of Appeal in a case such as this, that is to say a case in which the challenge is directed to findings of fact and the exercise of judicial discretion.

12. The hurdle facing any such appellant is very high. The Court will interfere only if it can be said that the judge was plainly wrong or can be shown to have exceeded the generous ambit of the discretion committed to her. The fact that others may not agree with her conclusions is neither here nor there.

13. The decisive finding in this case, as I pointed out to the parents during their submissions, is that the judge found the evidence of the children reliable and accurate on certain crucial and central facts. Once she had done that all other issues became secondary. I have carefully reflected upon the judge's approach to this case and on the parents' criticisms of it.

14. In the end I am wholly satisfied that those findings are unassailable. The judge has considered the evidence of the children, analyzed the inherent weaknesses in both evidence and process and has concluded that she can rely upon it. That was not only a decision open to her but one which on the evidence she was well entitled to take. Once she had done that the threshold criteria were inevitably established and she was required to consider the welfare of each child.

15. The findings that the judge made about the attitudes of the parents and their lack of capacity to change were made having heard them very fully giving evidence before her. They were findings which she was entitled to make on the evidence and the prospect of the Court of Appeal disturbing them is frankly outside reality. Once made, all other issues were wholly secondary.

16. However, the central concern of the parents was the making of the placement order in respect of NA. It is of course an order with lifelong implications for every member of the family. It is in practice irreversible. It was made principally on the basis of likelihood of harm based on the experiences of N and S of which NA was to a significant extent aware. It was essentially because of the enormity of the consequences of this order, that I have taken time to reflect on this case.

17. Having done so, I am quite clear that there is no realistic prospect of the Court of Appeal overturning that placement order. The order is founded in findings of fact that the Judge was entitled to make on the evidence (as explained above) and flows from an exercise of discretion based on her analysis of NA's welfare itself founded in the evidence. That was a conclusion well within the generous ambit of her discretion and the Court of Appeal will simply not interfere with it. Thus this appeal has no realistic prospect of success.

18. For all these reasons permission to appeal is refused.