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Court of Appeal counsels against orders in childcare cases extending time for making application for appeal until receipt of transcript

The Court of Appeal has warned against orders in childcare proceedings extending the time for making an application for permission to appeal by reference to the receipt of a transcript rather than by reference to a specific date.

Addressing the issue of delay in B-M (Children: Findings of Fact) [2021] EWCA Civ 1371 Lord Justice Peter Jackson said:

46. It is not satisfactory or usual for an appeal of this kind to take six months to conclude. The sequence of events is that the Judge delivered her oral judgment on 19 March. Following correspondence with counsel, her order provided for the local authority to take the lead in obtaining an approved transcript and to serve it on the parties by 10 May. The time for making any application for permission to appeal or for clarification of the judgment was extended until 14 days after receipt of the approved transcript, and a further case management hearing was listed for 18 June. In the event, the transcript did not become available until 23 June and the case management hearing was postponed until 20 September, no doubt to await this appeal. The result is that the Appellant's Notices were not issued until 7 and 12 July respectively and no requests for clarification were made in the light of the delay. Permission to appeal was granted on 18 August and the appeal was heard in vacation.

47. This court is well aware of the difficulties that there can be in obtaining transcripts promptly and of the fact that it may not be realistic for a party to decide whether to make, or for this court to be able to determine, an application for permission to appeal on the basis only of a note of judgment, particularly in a heavy case of this kind. However, I would counsel against orders extending the time for making an application for permission to appeal by reference to the receipt of a transcript rather than by reference to a specific date. In a case involving young children, an open-ended extension is unlikely to be appropriate while a fixed date may be more effective as a means of securing a transcript within a reasonable time.  

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On the appeal from findings of fact in this case, Lord Justice Peter Jackson rejected all the grounds argued.

HHJ Sapnara heard the case originally, which concerned the appellant mother M who has four girls A, B, C and D - aged 19, 17, 16 and eight respectively - and two boys E and F aged five and three.

Respondent father (F1) is father of the older three and appellant father F2 is father of the younger three.

In 2015, after a Cafcass report revealed that the three girls were adamantly opposed to seeing F1, an order was made that there should be no contact. A, B and C therefore remained with M and F2.

Peter Jackson LJ said the case before him concerned the three younger children, for whom a final welfare decision is overdue and C who will soon be 17.

The court was told that in February 2020, C told her school that she, A and B had over a long period been sexually abused by F2 and physically abused by him and their mother.

A also said that F2 had attempted to kiss her and that she knew that there was a sexual relationship between F2 and B. A later retracted this.

The police became involved and F2 was arrested and removed from the home. The local authority brought care proceedings and the younger three children were placed in foster care together, where they remain.

Peter Jackson LJ said: “The judge was faced with a mass of information and argument…for present purposes it is enough to say that the judge accepted the evidence of B, allowing for what she regarded as some understandable inconsistencies and exaggerations, that she broadly accepted the allegations made by C, that she found that A's retraction of her allegations was untruthful, and that she found the evidence of M and F2 to be comprehensively unreliable and untruthful.”

F2 appealed all HHJ Sapnara’s findings but M only seven of them, which included her awareness and active participation in the sexual abuse.

The local authority opposed the appeal, as did F1 and the Children's Guardian.

M argued that the judge's approach to B's allegations and evidence was flawed, in particular in relation to her assessment of the evidence which contradicted B's account and those matters she found to have corroborated it.

She also argued that the judge’s assessment of B's credibility was superficial, and that she wrongly decided M was a liar on the basis of findings made in the private law proceedings and took judicial notice of matters where this was not open to her.

Peter Jackson LJ said: “The judge understandably gave considerable weight to the way in which B and C described what they said they had experienced, but she set this alongside a number of other considerations.”

He added: “I also reject the argument that the judge brushed aside inconsistencies. In reality, the majority of the matters relied upon are not inconsistencies but differences, for example as to how often and for how long abuse had been occurring.”

It had been unnecessary to raise the concept of judicial knowledge “when what was really being meant is the common understanding of human behaviour that any judge of the Family Court will have, but that does not invalidate the judge's reasoning”.

Peter Jackson LJ said: “There is in my view a fatal flaw in the way in which these appellants advance their cases.

“M appeals only from seven of the nineteen findings, those arising from B's additional allegations. She accepts that the judge was entitled to make the other twelve findings, which include extremely serious matters that hugely reduce the improbability of B's further allegations being false.

“For instance, [an] unchallenged finding records that F2 had sexual intercourse with B within the home at night time.”

He said the wider suggestion that the judgment was unbalanced could not withstand a fair reading of a document that took seven hours to deliver orally.

“While it is always possible in a case of this kind to find detailed submissions that are not reflected in a judgment, I am entirely satisfied that this judge understood the issues, grappled adequately with them, and gave a decision that explains what she decided and why,” he concluded.

Lord Justice Peter Jackson added however: "The way in which a judgment is constructed is of course a matter for the judge, and it is not usually helpful to set out lengthy submissions in full detail. However, in the present case the Judge's explanations for the failure of the Appellants' cases are to be found at various points in what is a long document, and it would, I think have been helpful if there had been a section in which those arguments were shortly summarised and directly addressed, perhaps making the judgment less susceptible to challenge in the process."

Lord Justice Phillips and Lady Justice Elisabeth Laing agreed.

Mark Smulian

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