Care and adoption order: appeal out of time
In Re X (A Child) (No 3)  EWHC 2755 (Fam), Sir James Munby P (judgment given on 2 November 2016) was faced with a possible challenge by parents to a care and consequent adoption order. It raises three important procedural points; though first its unusual facts must be considered.
A child (‘X’) was 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. Both parents denied injury to their child. 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 made in respect of X. The parents were tried in the Crown Court. The case against them was dismissed on a direction by the trial judge after the Crown had abandoned its case following the hearing of the expert evidence.
In the light of what happened in the Crown Court 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 was in the inherent jurisdiction. Sir James Munby P explained this:
 … 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. In effect the parents were asking the Family Court to set aside its earlier care order, and thus also the adoption order. All but one party was represented by leading counsel. The parents applied a week before this fixture to withdraw their set aside application. This withdrawal application was opposed by all other parties. The question for Sir James Munby P was to decide whether the parents should be allowed to leave the judge’s original findings, as reviewed by the Crown Court, in place; and for no further court action now to take place?
Bearing in mind the overriding objective in FPR 2010 r 1.1 Sir James 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’?
Public interest and child’s welfare
He answered the first question by stating that, as he saw it, it was clearly in X’s interests and in the public interest that there be a rehearing, if this could be dealt with in accordance with the second question. So could a process be provided which would achieve fairness, especially in the absence of the parents?
It had already been agreed that, if need be, the parents – even unrepresented – could be compelled to give evidence (para ; and see Re U (Care Proceedings: Criminal Conviction: Refusal to Give Evidence)  EWHC 372 (Fam)  2 FLR 690, Holman J). Even if they were not required to give evidence (though there was already a variety of written evidence from them), nor were they present to challenge the present medical evidence – and more had been put forward since the Crown Court hearing – that evidence could be challenged as need be by counsel for the guardian ad litem (para ) without the guardian’s neutrality being compromised.
The significant features of this case relate to the procedure for review and rehearing; the approach of the court to self-incrimination privilege; and the view taken by the court as to a party withdrawing from a children application (though the last two were dealt with by agreement as to the law, not with any issue being taken on which the judge would be required to debate competing submissions).
(1) Application for rehearing – In the High Court application can only be made for rehearing – ie to set aside an existing order (other than in financial relief proceedings: FPR 2010 r 9.9A) – by an appeal (Senior Courts Act 1981 s 17) as was done here. The court – it seems – dealt with it by means of some form of inherent jurisdiction. It is not clear that the Court of Appeal has inherent powers, but only those of the court below (CPR 1998 r 52.10(1)). Be that as it may, the court plainly has power to order ‘a new trial or hearing’ (CPR 1998 r 52.10(2)(c)). All of this must be seen against the back-ground of another exceptional adoption case (W (A Child)  EWCA Civ 793) where a child’s grand-parents (who might be able to provide a viable placement and who were discovered after the adoption order was made.
(2) Self-incrimination privilege – In the vexed area of Children Act 1989 s 98(2) (and see Re C (A Minor) (Care Proceedings: Disclosure)  Fam 76,  2 WLR 322, sub nom Re EC (Disclosure of Material)  2 FLR 725, CA) and self-incrimination privilege it was said that s 98(2) ‘did not apply’; though, as the President pointed out, the privilege could only be claimed once the witness – the parents in this case – had been sworn to give evidence (Re X (Disclosure for Purposes of Criminal Proceedings)  EWHC 242 (Fam)  2 FLR 944, Munby J).
(3) Withdrawal of children proceedings applications – That the court has a discretion as to whether a children application should be withdrawn (and see Re N (Leave to Withdraw Care Proceedings)  1 FLR 134, Bracewell J) was taken as read. And so it must be under FPR 2010 r 29.4(2).
Fairness and the welfare of the child
Fairness and the welfare of X are at the centre of this case, as, indeed, was certainty for the child and the adoptive parents for the longer term. Sir James was at pains to secure these factors. The result of his decision will be further certainty for the child and security for the adopters with the care they provide.