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D (Children) [2005] EWCA Civ 322

Application made by the father of four children for an extension of time to appeal and for permission to appeal in care proceedings. Both applications granted.

B4/2004/2437

Neutral Citation Number: [2005] EWCA Civ 322

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM LEEDS COUNTY COURT

(HER HONOUR JUDGE CAHILL QC)

Royal Courts of Justice

Strand

London, WC2

Thursday, 27th January 2005

B E F O R E:

LORD JUSTICE WARD

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D (CHILDREN)

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(Computer-Aided Transcript of the Stenograph Notes of

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(Official Shorthand Writers to the Court)

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MISS K BUCKINGHAM (instructed by The John Wood Partnership) appeared on behalf of the Applicant Father

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J U D G M E N T

(As approved by the Court)

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Crown copyright©

1. LORD JUSTICE WARD: This is an application made by the father of four children for an extension of time to appeal and for permission to appeal.

2. The application was refused by Wall LJ, considering the matter on the papers, for reasons he fully expressed in writing. One of his concerns, which is a real concern, is that which arises from the tension between appealing against the order that is made in the matter before the court and appealing against facts found in the judgment which results in that order. There is, in my experience, some difficulty sometimes in deciding quite what the Court of Appeal's role and power is. The traditional view is the former is the correct approach, namely the appeal should be against the order of the court below, but certainly in appeals from the Family Division where these preliminary hearings or fact finding hearings have been held, there has been an acceptance of the applicant's right to appeal findings of fact. If one refines it even further, it may be a question of determining whether the fact finding inquiry proceeded by way of a hearing of a preliminary issue. In civil justice a preliminary issue would be settled by the judge or district judge posing a series of questions which have to be answered. The question here could be the general one, "Has the threshold set by section 31 of the Children Act 1989 been crossed?", or it could be a more specific series of questions, namely "Are each of the findings sought by the local authority, set out in the schedule placed before the court, proved to the court's satisfaction?".

3. I have expressed my dissatisfaction in the past with the way these fact finding inquiries are sometimes dealt with in the Family Division, and by the lack of true and keen focus as to quite what the court is doing. I do not think I have seen a fully satisfactory answer and, in my judgment, the matter gives rise to a point of practice of sufficient importance to grant permission to appeal on that ground alone.

4. Miss Buckingham, on behalf of father, points out, moreover, that the judgment, though not the order so far as I can see, also dealt with contact to these children, and contact is important, especially where their future placements are in some doubt. There is a substantial degree of difference between leaving contact at the discretion of the local authority, making an express and defined order for contact and giving permission to terminate contact. The degree of wrongdoing on the parents' part is obviously a factor of significance in deciding what course to take, as was plain in this case from the approach of the children's guardian, who was of the view that contact could not be properly determined until all the relevant facts had been found.

5. That leads to Miss Buckingham's third point. Her submission, very neatly, if I may say so, encapsulated in the statement which she presented pursuant to paragraph 4.14A(2) of the practice direction, is that the judge's findings are expressed in terms that may suggest each and every finding of fact sought by the local authority was proved. Looking at her judgment, however, one sees in paragraph 86 that she was saying: "It is not necessary for me to make findings about each and every allegation in this case". Ultimately she was to find that the three eldest children "have all suffered sexual abuse, not only by being allowed to watch their parents having sexual intercourse and oral sex, but also directly as described to Ms Wainwright and Julie Willett". Her findings in respect of S were more tentative.

6. I see the force of the argument that there may be no evidence to support some of the allegations in the local authority's schedule. There is a good deal of uncertainty about many of the allegations where evidence depends on hearsay account from one child in respect of matters done to another. Those matters are then promptly denied by the child said to be involved. Altogether, it seems to me, this case merits a closer look and I will grant permission to appeal generally. For what it is worth, I tentatively think that there was at least some evidence to establish the so-called rope incident relating to S, but the Court of Appeal should consider all of it.

7. I should add that the appeal is launched out of time. The reason for that was that the judge announced her decision at the end of the hearing, the order was drawn then but her reasons did not follow until much later. That accounts sufficiently for the delay so I grant the extension of time to appeal.

Order: Application for extension of time granted. Application for permission to appeal granted. Appeal to be heard before three Lord Justices, but can include a High Court judge. Appeal listed for a day. Costs of the application to be costs in the appeal.