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A (A Child) [2006] EWCA Civ 1161

This is an application for permission to appeal a care order leading to adoption by the mother of A. The application was refused.

The application was refused but the judgment is of interest because of Wall LJ's comments on the delay in the case, with its consequent impact on the likelihood of success of the application.

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B4/2006/1204

Neutral Citation Number: [2006] EWCA Civ 1161

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM PRINCIPAL REGISTRY FAMILY DIVISION

(MR PETER JACKSON QC)

Royal Courts of Justice

Strand

London, WC2

Tuesday, 18th July 2006

B E F O R E:

LORD JUSTICE WALL

LORD JUSTICE THORPE

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IN THE MATTER OF A (A CHILD)

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(DAR Transcript of

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MR N BAKER (instructed by Messrs Clark-Levy & Co, 6 Manor Road, Gravesend, Kent DA12 1AA), appeared on behalf of the Appellant.

J U D G M E N T

(As Approved by the Court)

Crown copyright©

1. LORD JUSTICE WALL: This is an application by Miss A for permission to appeal against a care order made by Mr Peter Jackson QC sitting as a deputy judge at the High Court on 4 November 2005. It was a reserved judgment, the hearing having occupied the period between 3 and 7 October. The subject of the proceedings was a little boy, T, born on 26 September 2001 and so just four when the judge heard the case. The matter came to me on paper for permission. I refused permission, indicating not simply on the merits but in relation to timing that I thought it unlikely that the full court would grant an extension of time. I am myself glad, as always in this situation, that the matter has been heard by a court containing two judges, because where one expresses a view on paper it is always important, I think, to have a second opinion.

2. The case has been argued this afternoon by Mr Baker on Miss A's behalf, if I may say so, extremely well. Indeed, I do not think it could have been better argued and I have, of course, listened with the greatest care to everything he says. One cannot but have considerable sympathy for Miss A who, having enormous difficulties in her past, has in the recent period leading up to the hearing and since made every effort to rid herself particularly of her drug addiction, and has made every effort to show her devotion to her child, who is clearly in a very close relationship with her. But despite that, I have come to the very clear conclusion that the judgment of the deputy judge cannot be impugned.

3. Before I even get to that, as I indicated in the papers when I had the matter on paper, the delay in bringing the case to this court is frankly and simply unacceptable. We are dealing here with a small child. The judge's judgment, which was handed down, or at least available in writing, was available on 4 November 2005. There was, therefore, no question of getting a transcript; the judgment was ready and available, and yet the appellants notice is not filed until some six months later, and this in a case where the expert evidence and the judge all made it absolutely clear that this little boy's future was vitally necessary to be decided very quickly. Particularly if he was to be adopted, he was on the cusp of the age when adoption was possible, and his future hung in the balance. In those circumstances, for a notice of appeal not to be filed for more than 6 months is not only unacceptable, it simply means that the case has moved on and that the grounds of appeal become even more difficult to mount than before.

4. We have been taken through the chronology, which appears in the documentation. As I indicated, it took a long time for the mother to instruct fresh solicitors. She did not do so until 30 January 2006, the best part of three months after the judge's order, and even then the solicitors did not move with the speed which was plainly needed and it was not, as I say, until very much later that the appellant's notice was filed.

5. In my judgment, without a really good explanation for the delay this court simply cannot, as a matter of principle, allow in an urgent child case a delay of that nature. It is quite contrary to the justice of the case and it is quite contrary to the interests of the child. So speaking for myself, and although it may sound harsh, I would simply refuse permission to extend the time for filing the appellant's notice.

6. But having said that, I have of course looked very carefully at everything that has been written by Mr Baker and advanced by him to us this afternoon. He has put in a very full and very careful skeleton argument. But at the end of the day, having looked at it and having read it and having listened to him, I come back to where I was when I refused permission on paper.

7. This is a judgment of the highest possible quality. The judge was faced with a very, very difficult decision. How I would have decided the case had I been sitting, I simply do not know. But the question is: Has the judge balanced all the various factors? Has he taken into account every possible consideration? Has he directed himself appropriately to the law? And has he reached a conclusion which is permissible and open to him on the facts?

8. I do not propose to go through the judgment line-by-line, or statement-by-statement. The directions as to the law which the judge gives himself in paragraph 10 are immaculate, and it is very clear that throughout the whole case he had at the forefront of his mind the fact that this little boy did enjoy a very strong and powerful relationship with his mother. The question was not whether someone else would look after the little boy better but, as the judge rightly put it: was it in the interests of the child; was it necessary for the child's welfare that he should be separated from his mother? Was it contrary to his interests to remain in her care?

9. For reasons which he sets out with enormous care, and having examined the facts in the very greatest of detail, having looked carefully at the European Convention and the rights of the parties under the European Convention, and having looked at the expert evidence he had, which included an assessment from an extremely distinguished psychiatrist, Professor Zeitlin, he came to the conclusion in conjunction with all the expert evidence and all the professional evidence that he could not take the risk of returning this little boy in his mother's care. There were two older children, one of whom was living with his father. The relationship between the mother and the father had always been tempestuous, and indeed the father had treated the mother with the most appalling violence, and yet she had continued to live with him.

10. Mr Baker frankly this afternoon, and I give him enormous credit for this, told us a fact which has not emerged from the papers and which we did not know, that the mother is in fact pregnant by the father; so the relationship between the parties continues. The relationship between the father and his son Ian, whom he looks after under a residence order made by the same judge, with supervision to the local authority, is itself, in my view, tenuous. That was a courageous decision for the judge to take, to leave Ian with his father. To do so, he went against the expert evidence and the recommendation of Professor Zeitlin. So the judge showed throughout an independence of spirit and the clarity of mind which led him inevitably to decide the best interests of this little boy, sadly, lay outside his natural family. Of course, time has moved on. There has now been a placement order, whether properly made or not may be a matter for argument, but a placement order has been made and adoptive parents are actively being sought.

11. I do not like deciding cases on technicalities, but I cannot shut my mind to this fact: that if we were to give permission, contrary to everything I think about the case, and were an application for permission lead to a full appeal, and were the appeal to lead to a rehearing, we would be well into the autumn if not next year, and a practical difficulty would arise. If, as must be the case, this child would have to be the subject of an interim care order, how was he to get into the care of his mother? The local authority certainly would not agree. There would have to be some form of residence order in her favour, with an assessment or surrounded by supervision, or what have you. None of which, on the evidence before the judge, would have been in the interests of the child, particularly if there was the risk, which the judge thought there plainly was, that the relationship might not survive, the capacity of the mother might not survive the stresses and strains, particularly as we now know she is pregnant and particularly as we now know, of course, she is going to remain in contact with the child's father in relation to contact if in relation to nothing else.

12. So, therefore, for all the reasons I gave when addressing the matter in writing, it seems to me, contrary to the very careful argument put forward by Mr Baker, the judge has weighed each and every factor carefully in the balance. He has given appropriate weight to the matters which needed weight. He has discarded or given less weight to those which need less weight and above all, he has weighed up the most important principle of all, which was that this little boy's right is to be brought up by his mother, unless his welfare requires otherwise, and regretfully after careful consideration the judge has come to the latter conclusion. I have to say that there was ample material upon which he could come to that conclusion. His conclusion in no way could be said to be perverse.

13. I have gone into all of that because I do understand the position of this mother. My experience, both at the Bar and a judge at first instance, was that frequently one had cases where parents realised only too late that their previous conduct had been fatal to their capacity to care for children, and made every effort to care for a child and to reform, and this appears to be happening here. This mother does appear, in Mr Baker's phrase, "largely to have kicked the drugs habit". The last test we have is that she is on a minimal amount of methadone; we are now told that she has come off even that. So she has been making every effort, and the case is particularly poignant because of that fact. But that fact alas does not wipe out the past and does not exclude the risk, and the judge plainly took the view that he could not take any risk with this little boy's future. For security and stability, and to grow up to fulfil his potential, he required a care order leading to adoption.

14. As I say, that was a conclusion, however finely balanced the case, the judge in my view was plainly entitled to reach. When I combine that with the delay in the institution of this appeal, I come to the inevitable but very sad conclusion that an appeal against this decision, even if we were to extend the time, would have no reasonable prospect of success. It would simply delay the agony for this mother and delay the future placement of this child.

15. In my judgment therefore the judge in my view reached the right conclusion or, at the very lowest, a conclusion which he was entitled to reach, and I would therefore refuse an application for permission.

16. LORD JUSTICE THORPE: I, too, conclude that this application must be refused for the reasons given by my Lord, Lord Justice Wall, in his judgment and also in his written reasons of 16 June.

Order: Application refused.