England and Wales Court of Appeal (Civil Division) Decisions

COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
ORDER OF HHJ THOMPSON DATED 2nd SEPTEMBER 2009 and 27th OCTOBER 2009

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/01/2010

Lord Justice Wall:

1. I heard this application for permission to appeal over the telephone on 14 December 2009. At that stage I had not had the opportunity properly to read the papers. I therefore decided to listen to what the applicant, Mr. H had to say, and to provide him with a written judgment. This is, in any event, my usual practice when hearing applications by litigants in person over the telephone. I had hoped to be in a position to provide Mr. H with the judgment before Christmas 2009, but was prevented from doing so by the pressure of other work. I apologise to Mr H for my inability to write the judgment before today.
2. Mr. H is the father of a small female child, DH, who was born on 6 August 2008. On 21 November 2008, at the conclusion of contested proceedings in which Mr H was represented by counsel, DH was made the subject of an interim care order in favour of the local authority in the case, the Suffolk County Council (the local authority). It appears that an application was made by Mr. H for permission to appeal against that order, but that the application was refused on paper by one of my colleagues, Thorpe LJ and does not appear to have been renewed.
3. On 2 September 2009, DH was made the subject of a full care order in favour of the local authority. She was also made the subject of a placement order under section 21 of the Adoption and Children Act 2002. It is against these orders that Mr. H seeks permission to appeal.
4. Mr. H is out of time for filing his appellant's notice. As he is a litigant in person, however, I propose to extend his time, and to consider the application on its merits.
5. Mr H has produced a detailed skeleton argument, which I have, of course, read carefully. It is, however, apparent from it that Mr. H, like many litigants in person, does not fully understand my function on an application of his nature. My powers are very limited. I look at the judgment given by the judge in the court below. I ask myself, firstly; has the judge made any error of law? Secondly, I look at the manner in which he exercised his discretion. Has he acted in such a way that his exercise of discretion is outside what lawyers call "the ambit of disagreement"? By this lawyers mean that the applicant has to show either that the judge's conclusion was not properly open to him on the material he had, or that he has exercised his discretion in a way which is, arguably, "plainly wrong":- see G v G (Minors: Custody Appeal) [1985] 1 WLR 647. If the judge has made no error of law, and if the conclusion is one which, on the facts, was properly open to the judge, there is nothing this court can do to intervene.
6. I can only give permission to appeal if I think that an appeal has a real prospect of success, or if there is some other compelling reason for there to be an appeal - see rule 52.3(6) of the CPR 1998 (the Civil Procedure Rules).
7. Furthermore, I am only concerned with the proceedings before the judge. I am not concerned with any complaint which Mr. H may have about the actions of the social workers or the local authority, or, indeed, anybody else.
8. It is also important for Mr. H to appreciate that questions of credibility – that is to say whom the judge believed and whom he did not – are matters for the judge, not for the Court of Appeal. The Court of Appeal does not hear oral evidence or see the witnesses giving evidence: the judge does. As I have already said, provided the judge has reached a conclusion on a particular issue that was properly open to him, and provided he has made no error of law, there is no basis upon which the Court of Appeal can interfere.
9. I do not criticise Mr. H for being unaware of these matters. He is not a lawyer. But his lack of understanding undermines a great deal of his argument. For example, judges in Family Proceedings make findings on the civil standard – that is the balance of probabilities. This proposition has recently been emphatically repeated by the House of Lords – see, in particular, the speeches of Lord Hoffman and Baroness Hale of Richmond in Re B (Care Proceedings: Standard of Proof [2008] UKHL 35. [2009] 1 AC 11. They do not apply the criminal standard of proof - beyond reasonable doubt
10. Thus, to take one example only, it is properly open to a judge to make a finding of fact on the balance of probabilities even though the facts themselves are the subject of a criminal investigation or criminal proceedings. Indeed, it is commonplace for defendants to be acquitted in the criminal courts of abusing children (sometimes because the child does not come up to proof or refuses to answer question) and for the judge in care proceedings on the same facts to find, on the balance of probabilities, that the defendant has indeed abused the child. The proceedings have different purposes, different rule of evidence and different standards of proof.
11. Finally, it is important for Mr. H to understand that judges in the position of Judge Thompson in the present case enjoy a very broad discretion. Mr. H complains that the judge has "used too wide a discretion in his findings". That is a matter which I need to look at, but the basis upon which I do so is that which I have already explained, namely – did the judge step outside the ambit of the broad discretion which is given to him and reach a conclusion which was plainly wrong? I repeat: if the judge has properly reached a conclusion which was open to him on the evidence, the fact that Mr. H does not agree with it – or, for that matter, the fact that I may not agree with it - is neither here nor there.
12. Against that background, I turn to look at the two judgments which the judge has given in the case. The first, which is dated 21 November 2008, contains the judge's reasons for making an interim care order. An attempt was made to appeal against that order, and the attempt failed. The judgment must be read with this fact in mind: that is to say that it stands unappealed. I comment only that, if anything, the judge set the bar too high for the local authority by citing and relying on the decision of Ryder J in Re L [2008] 1 FLR 575 – see the subsequent observations of Thorpe LJ in re L-A (Children). [2009] EWCA Civ 822. In any event, it is simply not open to anyone to say that the interim care order was not properly made.
13. The judge had the great advantage that he not only knew the case well, but had also dealt with the case of DH's half brother BW. Judicial continuity is extremely important in family proceedings, and findings of fact made in one set of proceedings are properly admissible in other proceedings, in the same way that they can be challenged in other proceedings. I remind myself that both in the interim care proceedings and at the final hearing, Mr. H was separately represented by counsel who plainly conducted the case energetically on his behalf.
14. Thus the judge, in my view, was perfectly entitled to find, as he did, that the evidence in BW's case established that he suffered neither from diabetes or cerebral palsy, but that his mother had falsely described him as doing so.
15. It is also in my view significant that in the instant case, the judge granted permission for both of DH's parents to instruct expert assessors. It is commonplace for experts to meet. It is also not unusual for experts to change their minds, either as a result of discussion or on receipt of fresh information. Some judges (myself included) take the view that a capacity to change an opinion demonstrates that the expert does not have a closed mind.
16. The judge was plainly entitled to find the threshold criteria under section 31 satisfied. He made no error of law in doing so. To the contrary, he cited the statutory provisions and the leading case on the point. He fully considered the submissions made to him by both parents.
17. In these circumstances, the judge was entitled to find that the mother suffered from a "narcissistic personality disorder". He was equally entitled to find that therapy for the parents would not be effective within DH's timescale. This is a conventional finding for which there was abundant material.
18. In relation to the text messages, I have already made it clear that it is open to a judge to make findings of fact on the balance of probabilities, even where the same facts are the subject of a criminal investigation. There was plainly material on which the judge could be satisfied on the balance of probabilities that Mr. H was the author of the text messages. Whether I would have made such a finding, and the fact that Mr. H disputes it are both neither here nor there. These are matters for the judge. He had the material. He made the finding. He was entitled to do so.
19. Having found the threshold criteria satisfied (as he was entitled to do) the judge then had to consider what to do. It was not possible to rehabilitate DH with one or both of her parents. He was thus entitled to consider care and adoption orders and, for the reasons he gives, entitled to make them.
20. All in all, I regard this as a very full and careful judgment. I appreciate that Mr. H does not agree with it. But once it is recognised that the judge was entitled to make the necessary findings or fact, the rest follows.
21. How does Mr H attack the judgment? He asserts his love for DH. I do not doubt it. At the same time, he seeks to attack all the professionals in the case. He submits that the social worker acted "with malfeasance, and formulated a biased report". He seems minded to report the professionals to their respective bodies and to institute criminal proceedings. These are matters for him. They do not affect my analysis of the case, or that of the judge.
22. Mr H cannot challenge the interim order. The judge was entitled to make findings in the proceedings about BW, and to import them into the care proceedings relating to DH. There has been no procedural irregularity or breach of Mr. H's ECHR rights. The judge heard the evidence of the social workers and the experts and has made his findings. As I have already stated, they were findings open to him.
23. In short, there is nothing in Mr. H's skeleton argument which begins to persuade me that it is even arguable that the judge got this case wrong. An appeal would stand no prospect of success, and there is no other compelling reason for an appeal to be heard. The application for permission to appeal will thus be refused.