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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> J (A Child), Re [2001] EWCA Civ 1637 (24 October 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1637.html
Cite as: [2001] EWCA Civ 1637
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE READING COUNTY COURT
(His Honour Judge Elly)
Strand London WC2 |
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B e f o r e :
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| RE: "J" (a Child) |
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Smith Bernal Reporting Limited
190 Fleet Street London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
(Official Shorthand Writers to the Court)
The Respondents did not appear and were not represented.
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Crown Copyright ©
- LORD JUSTICE THORPE: This is an application for permission to appeal brought by Mr and Mrs J against an order made by His Honour Judge Elly, sitting in the Reading County Court on the second day of a two-day hearing. The application before him was brought under section 10 of the Children Act 1989 and sought permission to issue an order for contact to S, who is the 13 year old daughter of the applicants. So I must at once explain how, as natural parents, they required leave to issue a section 8 application.
- The explanation lies in the history. In 1996 another daughter complained of sexual abuse within the family. At the time there were six children at home. There were investigations, as a result of which ultimately S was taken out of the family and placed for adoption, the final order being made on 20th June 1999. To make that order the judge had to dispense with the consent of S's parents, the applicants, and he did that. He only provided for contact between S and her older sister, who had originated the investigation.
- The judge properly directed himself as to the approach in determining an application under section 10. He then came to consider two matters of fact. One was the complaint that the adoptive parents were separated; it was said that that was a change of circumstance relevant to outcome. The judge investigated that and determined that it did not represent any fundamental change of circumstances. The second issue was whether there had been regular contact between the parents and S over the period after her placement. Here there was a head-on conflict of evidence between the parents and the adoptive mother. The judge had to evaluate who was telling the truth. He criticised the adoptive mother's deportment in court, but concluded that there was nothing of sufficient substance to lead him to reject her evidence. He then considered the evidence of the parents and, for reasons which he gave, concluded that their determination to gain S for the family would extend to the fabrication of evidence and he rejected their account.
- In those circumstances it is extremely difficult for Mr and Mrs J to achieve permission to appeal. First of all, they failed to persuade the judge that their story was true. Secondly, the judge was exercising a broad discretion. This court will not interfere with the fact-finding of the trial judge save in the most exceptional circumstances. It is his task to assess credibility and he has the unrivalled opportunity of seeing and hearing the witnesses. Even in the field of discretion that operates to his advantage and it is rare that this court will interfere with the properly founded exercise of a discretion. I have not been furnished with a transcript of the judgment below. I have only a note taken by the solicitor attending. But it is to be emphasised that the trial lasted for two days. Mr and Mrs J were represented by Mr Jonathan Baker QC. The local authority were represented by counsel, as was the adoptive mother. So these were full and relatively expensive proceedings in the County Court and, unless there were some really clear and serious error demonstrated, this court would be exceptionally unlikely to interfere.
- Mr and Mrs J have eloquently pleaded their sense of injustice and their desire to rescue S from her present family. There can be no absolute guarantees that they are misguided. It may be that justice has failed. It may be that they are truthful. But there is nothing that I can do. I am not the dispenser of some divine justice. All I can do is to examine whether there is sufficient demonstrated error in the court of trial to justify the grant of permission. Plainly there is no such. This application must therefore be refused.