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Re D (Children) [2005] EWCA Civ 322

Permission to appeal out of time granted in a case where, it is anticipated, the Court of Appeal will give guidance about the conduct of fact finding hearings

Re D (Children) [2005] EWCA Civ 322

Court of Appeal: Ward LJ (27 January 2005)

Summary
Permission to appeal out of time granted in a case where, it is anticipated, the Court of Appeal will give guidance about the conduct of fact finding hearings

Background
This was an application, by the father of four children, for an extension of time to appeal and for permission to appeal. The application had been refused by Wall LJ, amid concerns about the precise nature of the Court of Appeal's role and power. The traditional view was that the appeal should be against the order of the court below; but, certainly in appeals from the Family Division where a preliminary hearing or fact-finding hearing had been held, there was an acceptance of the applicant's right to appeal findings of fact.

It was argued on behalf of the father that the judgment dealt with contact to the children, and contact was important, especially where their future placements were in some doubt. Further, it was submitted that the judge's findings were expressed in terms that may have suggested each and every finding of fact sought by the local authority was proved; however, the judge had said at paragraph 86 that "It is not necessary for me to make findings about each and every allegation in this case".

Judgment
Held, granting the application, that the fact-finding inquiries had not produced a fully satisfactory answer, and the matter gave rise to a point of practice of sufficient importance to grant permission to appeal. There was a good deal of uncertainty about many of the allegations where evidence depended on hearsay account from one child in respect of matters done to another; those matters were then promptly denied by the child said to be involved. Altogether, the case merited a closer look.

As to the extension of time to appeal, the judge had announced her decision at the end of the hearing, the order had been drawn then but her reasons had not followed until much later; and that accounted sufficiently for the delay, so the extension was granted.

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