Permission to appeal out of time against a care order
Re X (A Child) (No 3)  EWHC 2755 (Fam)
, Sir James Munby P (2 November 2016) is an important case for at least three procedural reasons, quite apart from its unusual facts. First the facts, then a review of the procedural points.
A child, X, had been made the subject of a care and placement order in 2013 in respect of metaphyseal fractures said to have caused by one or both parents, which both of them denied. They applied to join in adoption proceedings, when issued; but were refused. An adoption order was made. There were no appeals by the parents against any of these orders. They were tried in the Crown Court, and the case against them dismissed on a direction by the trial judge. The Crown had abandoned its case after the hearing of the expert evidence.
The parents applied for permission to appeal out of time against the care order, which appeal – agreed by the local authority – was allowed by the Court of Appeal. Further evidence was now available and, said the Court of Appeal, the appropriate route was to apply what was in the inherent jurisdiction of the court. This was explained by Sir James Munby P:
' … The order made by the Court of Appeal identified the inherent jurisdiction as the most appropriate legal mechanism and directed that the matter was to be listed in the first instance before me. The local authority’s application under the inherent jurisdiction was issued on 22 April 2016 seeking "a re-hearing of the fact finding from the care proceedings" ...'
A re-hearing date was fixed for 17 October 2016 with all parties, including child and adopters, represented; and all but one with leading counsel. The parents applied a week before the fixture to withdraw. This was opposed by all other parties. Were the parents to be entitled to withdraw and leave the judge’s original findings, as reviewed by the Crown Court, in place?
Bearing in mind the overriding objective in FPR 2010, r 1.1, the President set himself two questions (at para ):
- Is there ‘solid advantage’ in the proposed rehearing going ahead as planned; and
- Could he be reasonably confident that it would be a fair process ‘capable of delivering the truth’?