In family cases now, is the appeal test “plainly wrong” or “wrong?” – Court of Appeal to grapple with this issue.
I remarked during my commentary on Re B, that I thought the Supreme Court might come to regret their decision that where an appellate Court is considering an appeal about threshold, there was no distinction between wrong and plainly wrong.
I didn’t think it might happen so quickly.
In Re BS (Children) 2013, Permission was granted by MacFarlane LJ for an appeal from a decision of Parker J to refuse leave to oppose an adoption hearing, and it seems, from the reading of his decision, that he probably would have refused permission to appeal prior to Re B.
In particular, MacFarlane LJ felt that the issue of whether the test for appellate Courts now dealing with family appeals had lowered, in the light of Re B, from “has the applicant shown that the Judge was plainly wrong” to “has the applicant shown that the Judge was wrong”
The first of those two formulations has always been the test, and of course is a much higher hurdle, both in the appeal, and any application for permission. It reflects that with the majority of judicial decisions, a Judge might reasonably decide the case one way or another, providing that they give a detailed and reasoned judgment considering those things that are relevant and not considering things that are irrelevant, and applying the correct legal tests. With that in mind, a Court of Appeal can have all three Judges look at the case and think that they would have made a different decision to the original Judge, but still refuse the appeal, if the decision was within a reasonable spectrum of the decisions that the original Judge could have made. In essence, an appeal ought to be allowed if the Judge made a decision that on the facts before them a Judge could not have reasonably made.
You might well think that an appeal court ought to just decide if they think the judge got the case right, and that’s certainly a legitimate public debate to be had, but it isn’t what the law is.
Or at least, it wasn’t.
The problem with the Supreme Court hearing a case is that if they decide something, that can override any other previous decisions, and whilst they might, as in Re B, believe that they are making a very narrow qualification and adjustment to the law, it can result in far far bigger consequences.
Here’s what MacFarlane LJ said in the permission judgment
17. The short description of the matters I have in mind are as follows. Firstly, at two stages in her judgment, the judge apparently referred to the test that she had to apply being a three stage test. The judge quoted from Re W (paragraph 18), as I have just done, and then went on to say: “The second and third hurdle are conflated into one test”. Then later in the next page of the judgment, she said again, “2nd and 3rd test have to be looked at together”. I consider it is arguable that that displays an erroneous understanding of the test. My reading of Re W is that the third fence that Thorpe LJ describes is one that is only faced by the parent if they succeeded in getting leave to oppose the adoption and they are sitting in court arguing the point in the full hearing. That justifies to a degree granting permission to appeal, but if that was the only point in the case, I would have been reluctant to grant permission because the judge’s general approach to the determination of the issue before her seems to have been more generally in line with Re W and the threshold described there.
18. The second reason for granting permission to appeal arises from Re B. First of all, in the judgments both of Lord Neuberger and of Baroness Hale, in particular at paragraphs 82 and 104 in the former, and 145, 198 and 215 in the case of the latter, very clear and firm descriptions are given of the high level of evidence that has to be established before a court can go on to make an adoption order in circumstances where the child’s parents do not consent to adoption. Having read those judgments, and having read the Court of Appeal decision in Re W, I am concerned that the test in Re W may now need to be reconsidered in the light of the approach to adoption which has been restated in these very clear terms by the Supreme Court. In particular, I am concerned that the words of my Lord, Thorpe LJ, that I have quoted from paragraph 17, where he describes as “exceptionally rare” a parent succeeding in an application of this sort may no longer be tenable. Particularly I have in mind that a parent can only be in the position of making an application under section 47(5) if there has been a care order, a placement order, the placement of the child for adoption and an adoption application being lodged. Those are the very circumstances that trigger the jurisdiction under section 47(5).
19. There is justification therefore in my view in giving leave so that the test to be applied in these applications for leave as cast in Re W can now be audited in the light of the judgments of the Supreme Court in Re B to ensure that it sets the threshold at a proportionate level.
20. Thirdly, and in a different context, each of the Justices in the Supreme Court describes the approach that is now to be taken at appellate level in relation to decisions which are not simply discretionary determinations by a judge, but are decisions which impact upon Convention rights, the human rights, of one or more of the parties. Where an appeal takes place, Re B makes it plain that the appellate court has a duty to review the first instance judge’s compliance or otherwise with her obligation not to determine the application in a way that is incompatible with the Article 8 rights that are engaged. Arguably such a review is, in my opinion, justified on the facts of this case.
21. Previously I would have applied a test of considering whether the prospective appellant here has a reasonable prospect of establishing that Parker J was “plainly wrong” in refusing permission to oppose. Now it seems that the test is one that is potentially lower, namely of considering whether Parker J was “wrong”. There is a need first of all to clarify which of those two tests does apply to an appeal of this sort on this topic, and if the lower level is applicable, namely that the judge was “wrong”, then on the facts of this case it becomes less clear that the mother has no reasonable prospect of persuading the full court that Parker J was indeed “wrong”. That is particularly the case where, as I remind myself, the issue here is not the ultimate question of whether or not an adoption order should be made, but simply whether the mother can oppose the making of the order at a full hearing where the issue of parental consent is then determined afresh in the light of all the current circumstances.
Let’s look quickly at what the Supreme Court decided on the issue of the test for an appellant Court on threshold
They refer to all of the important cases on the test for appellant courts – G v G, Piglowska .
The Supreme Court then drew a distinction between cases where the Judge was exercising a discretion (presumably meaning that in those cases, Piglowska et al still applied, and the formulation was ‘plainly wrong’) and cases where the Judge was not exercising a discretion, such as in answering the question as to whether threshold was met
(The underlining in this quotation from Re B is all mine, and it may help in your reading if you imagine me raising my eyebrows on those bits)
44. On any view there is nothing discretionary about a determination of whether the threshold is crossed. I consider that in the Court of Appeal Black LJ was correct, at para 9, to categorise it as, instead, a value judgement, particularly, but not only, when the court is surveying likelihood. Black LJ proceeded to adopt the approach of Ward LJ in the Court of Appeal in Re MA (Care Threshold), cited above, at para 56, that the question on an appeal against the refusal of a judge to hold that the threshold had been crossed was whether it exceeded the generous ambit of reasonable disagreement. In my judgment in that case, from the outcome of which I dissented, I asked, at para 34, whether it had been “open” to the judge to refuse to do so. In her judgment Hallett LJ asked, at para 44, whether the judge had been “plainly wrong” to refuse to do so. Although these are matters of little more than nuance, I consider in retrospect that in that case none of the three of us afforded sufficient weight to the evaluative, as opposed to the discretionary, nature of a determination whether the threshold is crossed. Ward LJ’s reference to the generous ambit of reasonable disagreement seems apt only to the review of an exercise of discretion, as in G v G. My own reference to whether the judge’s determination had been “open” to him now seems to me to have been singularly uninformative. Perhaps Hallett LJ came closest to the appropriate test in her reference to whether the determination had been “plainly wrong”. But it is generally better to allow adjectives to speak for themselves without adverbial support. What does “plainly” add to “wrong”? Either the word adds nothing or it serves to treat the determination under challenge with some slight extra level of generosity apt to one which is discretionary but not to one which is evaluative. Like all other members of the court, I consider that appellate review of a determination whether the threshold is crossed should be conducted by reference simply to whether it was wrong.
Given that the Supreme Court is binding on all of us, unless and until either Parliament changes the law, or the European Court of Human Rights says that the Supreme Court were wrong in Re B (cough, cough), the effect of that passage is fourfold
- Indisputably, the test for an appeal about threshold is NOW whether the Judge was wrong, not whether the Judge was plainly wrong.
- As determining threshold often arises from the way a Judge determined FINDINGS of fact about an alleged injury or alleged abuse, an appeal about a Judge concluding that as a result of those findings, threshold is met, might well now be decided on “wrong” rather than “plainly wrong”
- The Supreme Court have developed a two tier test for appeals – one where the Judge was exercising a discretion (where they have to be plainly wrong) and one where they are not (where they just have to be wrong)
- Given that the Supreme Court forgot to set out a test for which category any given decision would fall into, there is going to be satellite ligitation, as here as to which category the case falls into.
For what it is worth, my own view is that on the Re B “plainly wrong v wrong” issue, the existing caselaw on refusing / granting leave to oppose an adoption order is extraordinarily plain that the Judge is exercising a discretion and thus I believe that it is untouched.
Having said that, I still cannot FATHOM why the Supreme Court considered that in determining whether threshold was met, the Court was not exercising judicial discretion, still less that this was the case “on any view” and when one looks at what a Judge has to do when determining if given behaviour or allegations of such behaviour constitutes the threshold criteria, it is hard to argue that such process is markedly different to the test in the leave to oppose adoption (does the change warrant a reopening of the case).
I can see potentially that if a Court found that there HAD BEEN NO change in circumstances (the first limb of the test in leave to oppose adoption), post Re B, an appeal about that would probably be on the basis of whether the Judge was wrong, the second limb (given that change, is it in the child’s interests to reopen the case) would, in my mind, be on the basis of whether the Judge was plainly wrong.
But until the Court of Appeal tell us what they think about any suggestions that the Re B formulation will bleed out beyond simply threshold cases, we won’t know. Nor do we know whether that ‘wrong’ versus ‘plainly wrong’ formulation will bleed out into cases much wider than the Children Act 1989 and Adoption and Children Act 2002.
I remain amazed, that the Supreme Court ever considered that introducing a two tier test for appeals, and not clearly setting out how one is to sift categories, was something that they needed to do, or that it was ‘little more than nuance’