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F & H (Children) [2007] EWCA Civ 880

Application by father for permission to appeal care and placement orders. Application dismissed.

In his judgment, Wall LJ sympathises with the applicant but uses the case as a chance to reiterate the powers available to the Court of Appeal, referring back to a recent decision in Re W (Children) [2007] EWCA Civ 786


Neutral Citation Number: [2007] EWCA Civ 880
Case No: B4/2007/1380
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 24/08/2007
Before :


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F & H (Children)
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Mr MDH (The Father) appeared before LJ Wall by video link

Hearing date : 16th August 2007
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Lord Justice Wall:
1. As this case concerns two very small children, and is possibly ongoing, I propose to write this judgment anonymously.

2. On 16 August 2007, I heard an application by video link made by Mr. MDH (whom I will call "the Applicant") for permission to appeal against orders made by HH Judge Roddy in the Liverpool County Court on 12 June 2007. Those orders concerned two small children, both boys. They are NF, who was born on 20 September 2005 and DH, who was born on 10 January 2007. The judge made full care orders in relation to both children under section 31 of the Children Act 1989 (the 1989 Act), and also made placement orders in relation to both under section 21 of the Adoption and Children Act 2002 (the 2002 Act). At the conclusion of the hearing, I told the Applicant that I would consider carefully what he had said to me, and would give my decision in writing as soon as possible.

3. I can set out the background quite shortly .The mother of both children is AH, to whom the Applicant is still married, although he told me on 16 August that he and AH had finally separated, and that divorce proceedings were underway. The Applicant is the biological father of DH. He is not the father of NF, but I accept that he has played a full a part as he was able to play in the life of NF, and that he regards NF as if he were his son.

4. AH was born on 22 July 1977, so she is now 31 years of age. Unfortunately, she has a long history of behavioural problems and has been known to Social Services since 1994. The Applicant described her to me as "controlling", with the result that he acknowledged that he had sometimes put what she wanted before the interests of the children. That was something he told me he now very much regretted.

5. AH has had 4 other living children, apart from NF and DH. She has not been able to look after any of them, and they were either taken into care or placed with their respective fathers. Those four children range in age from 10 to 5: they are SS, a boy, born on 6 October 1996; RF, a girl, born on 26. December 1998); K, a boy, born on 12 October 2000 and KD (also a boy) born on 14 July 2002). SS and RF were placed in the local authority's care and K and KD were placed with their respective fathers.

6. The local authority intervened in the care of the other children and in 2003, AH was re-assessed in relation to them. The Applicant was also assessed by an independent social worker, Ms SH, and the assessment was initially positive. There was a feeling that the Applicant could compensate for AH's deficiencies as a mother. However, during the course of the proceedings, the Applicant's medical records were disclosed. These painted a different picture. They revealed that the Applicant had taken at least one overdose; that he had serious behavioural difficulties; that he had been involved in an incident with his parents involving a knife, and also that he had problems with alcohol.

7. In these circumstances, Judge Roddy came to the conclusion, both on her own analysis of the case and on the advice of the professionals in the case, that the needs of the two children required a secure adoptive placement, and that they could not wait whilst the Applicant underwent a further assessment. She therefore made the orders sought by the local authority.

8. One of the difficulties is that we do not have a transcript of Judge Roddy's judgment, even though she made an order that a transcript should be prepared and maintained on the court file. However, we do have her order, and a note of the judgment prepared by one of the solicitors in the case. The Applicant did not know what had happened to the transcript, and left it for me to decide whether or not I could decide the application without it. I told him that if I came to the conclusion that I needed to see the transcript before deciding the case, I would say so, and would give him an opportunity to comment on the transcript. In the event, however, I have decided that I can decide the case without a sight of the transcript. This is for two reasons. Firstly, the note of the judgment provided is very good, and gives me a clear picture of the manner in which the judge approached the case. Secondly, the judge's order does not simply set out the orders she made: it contains what is in effect a narrative of her reasons for her decision. I have found this very helpful, and in combination with the note means that I can give my decision without seeing the detail of the judge's reasons.

9. In case the Applicant is concerned about this, I should perhaps add that Judge Roddy is a very experienced family judge, and I am quite satisfied that her judgment, if I saw it, would amply support the findings set out in the order and summarised in the note. I do not think that the Applicant is therefore in any way disadvantaged by the absence of the transcript.

The limited role of this court
10. Before I turn to the substance of the application, I need to explain to the Applicant what powers a judge in my position has when hearing an application for permission to appeal. I think the best way of doing this is to attach to this judgment an extract from the decision of this court in case of Re W (Children) [2007] EWCA Civ 786, judgment in which was handed down by Bennett J and myself on 26 July 2007. If the Applicant has access to the internet, the full judgment can be found at

11. The Applicant will see from this extract that I can only give him permission to appeal if he can put forward an arguable case that the judge was plainly wrong. To be plainly wrong the judge must either have made an error of law or she must have exercised her judicial discretion in a way which is outside the band of decisions within which it is possible for one judge to disagree with another without either being able to say that the other is wrong. As the extract from Re W (Children) demonstrates, how I would have decided the matter had I been in Judge Roddy's position is neither here not there. If there was material upon which she could properly reached the decision she did reach – in other words if that decision was one which was properly open to her on the evidence,that is the end of the matter. It is not my function to second guess the judge. The question for me is whether or not she has exercised her discretion to reach a result that was properly open to her.

12. This is, of course, a high hurdle for any potential appellant to overcome. I am not, of course, responsible for the height at which the hurdle has been set. However, like Judge Roddy, I have to obey the rules.

The judge's order
13. Against that background, and in the particular circumstances of this case, I propose to set out the order as made by the judge in full. She firstly lists the names of counsel who had appeared before he in the case. It is clear from this that the Applicant was legally represented before the judge. The then identifies the documents she had read and the evidence which she had heard .The witnesses include, in addition to the Applicant and AH, the senior social worker called by the local authority, a psychologist, and in independent social worker.

14. The judge then records that the case proceeded on the basis that the threshold criteria under section 31 of the Children Act 989 were satisfied

(1) At the outset of the mother's relationship with (the Applicant) the case was presented on the basis that she could not put herself forward as sole carer for the children or either of them.

(2) The mother and father had originally presented their case on the basis that the father could make good any deficit in the mother's parenting capacity.

(3) In recent months leading up to the hearing, the relationship between the parents has deteriorated and since in or about March 2007 the deterioration accelerated to the point of breakdown.

(4) At the commencement of the hearing, each of them was seeking to be assessed as sole carer for the child(ren)

(5) On the first day of the hearing, the father's awaited medical records were disclosed and they showed that he had lied both actively and by omission as to his personal history in order to present the most favourable impression of his life, past and present. The effect of his lies was to invalidate the various assessments of him.

(6) On the evening of 6th and early hours of 7th June the father was sending text messages to the mother. The text messages can only be read by a detached observer as an attempt by the father to restore the relationship. The father denied this and said that the messages were his means of trying to provoke a reaction from her, which would allow him to understand her emotional state. The court rejected his explanation.

15. The judge then recorded the requests by both the Applicant and AH for a further adjournment, so that the Applicant could undergo a psychological assessment and the mother could be assessed by an independent social worker. The judge then recorded the evidence of Dr. A (a psychologist) who had expressed the view that there were no merits in carrying out another assessment of the mother, and the evidence of SH (an independent social worker) who had expressed the view that there were no merits in carrying out another assessment of the Applicant. SH had informed the judge that this was because the opportunity for the Applicant to be assessed had been provided, but that the assessment was invalidated by his decision to lie to SH, to the mother, to the professionals in the case and to the court.

16. The order then records that the senior social worker and the guardian shared the views of Dr. A and SH in respect of the utility of any further assessments. It goes on to reject the Applicant's suggestion that there might still be time for DH. It records that all the professional witnesses in the case (Dr A, SH, the senior social worker and the guardian) unanimously expressed the view that further delay could not be justified in relation to either child, as the children could not wait for their parents to mature and achieve stability. There was no proper basis for distinguishing between the two children, and DH did not have any time to spare. The order recites that the court accepted the unanimous professional opinion, which accorded with the view it had reached independently.

17. The order records that the court had applied the provisions of section 1 of the 1989 Act (the paramount welfare test) and had concluded that the only proportionate response was the making or care orders in relation to each child with a care plan for a closed adoption. The order adds that life story work should be undertaken with the children and that they should be told that their parents had not surrendered them, but had fought for their return. The court had been told that prospective adopters had been identified who would accept both children and who were willing both to meet the parents and to accept post adoption, two way indirect contact.

18. On this basis the judge made care orders in relation to both children, and also made placement orders under the 2002 Act.

19. The note of the judgment shows clearly that the order reflects the judge's thinking. The judge held that no other order than a care order would be appropriate for the children having regard to their ages, and that adoption was the correct way forward, not long term care - which their mother had herself received. The court recognised that the welfare of the children was paramount, and it was satisfied that the welfare checklist had been met. The judge was satisfied that any delay would not be appropriate and that the professionals did not agree with any further delay occurring; that each child needed to have his emotional and physical needs met and to be protected from violence and volatility. If the children were to stay longer with their foster carers it may be upsetting for them (the children). Although the parents had not caused the children any physical harm, they were likely in the future to suffer the instability and the risk of emotional harm if they lived with either AH or the Applicant. Their parents were not stable or settled and had a volatile relationship. Furthermore, the Applicant had lied about his past and had sought to hide all his problems for example, that he did not have a driving license, his alcohol problems, and behavioural problems. As a result, his assessment had been based on lies; he had not been frank and he could not be trusted since his lies were a means to an end.

20. The Applicant's grounds of appeal and submissions are inter-woven. Essentially, however, the Applicant was, I think attempting to argue the following, and I have attempted to distinguish them from each other as follows:

(1) The judge had erred in failing to give any or any proper consideration to the evidence of the Applicant, in particular the findings of the assessment that the Applicant's overall childcare was very good.

(2) The judge erred in that she failed to have regard to the Applicant's ECHR Article 8 rights as she refused to make an order for residence, but instead made a placement order for the children to be adopted. The order breached the Applicant's Article 8 Rights.

(3) The judge erred in making the placement order since it denied the children their Article 8 rights as they were not allowed to live with their father.

(4) The judge was biased since she presided in a previous case involving custody of the mother's son (KD), who was subsequently placed in the care of his father by an order of the court.

21. The Applicant also submitted that:

(5) The judge should have considered that the assessments by the professionals showed that that the Applicant's overcall childcare was deemed very good. In addition, the Applicant has another son K, of whom he had joint parental responsibility. The Applicant had experienced no problems caring for his son and was therefore fit to care for his children - r his biological son at the very least.

(6) There was no evidence to suggest that the Applicant ever neglected or hurt any child in any way, nor was there evidence that he has a drug or alcohol problem.

(7) That although the Applicant admitted misleading and lying to the court about owing a driving license and about his mental health history, the Applicant was willing to undergo a psychological assessment to prove that he was capable of parenting the children. Further, the said lies did not warrant the children being taken away from their family, namely their father.

22. In his oral argument to the court on 16 August, the Applicant explained that he and the children's mother had finally separated, and that there was a divorce under way. He had not seen the mother for a month. The Applicant also stressed his regular contact with his son K, whom he regularly had to stay overnight.

23. The Applicant accepted that he did fail to put the children first on occasion. He described himself as being under the mother' influence. She had been the controlling force, and he had put her first. The relationship with the mother was now over.

24. The Applicant told me about taking steps to get employment in Stoke on Trent and his ability to look after the children in his own home. He acknowledged that he had been untruthful, and that this had been a concern to the court. He had led the court to believe that he had a full licence, and he did drive the children around. This had been wrong. He had been given a 50 hour community service order. This was the first time he had been involved with the police. He would not repeat it. He had been given a driving ban. What he had done was dangerous, and had been a stupid thing to do.

25. He also referred to his mental state. There had been a "couple of attempted overdoses", but these had been just a cry for help. Now that his relationship with the mother was over, he did feel a different person, and was quite willing to undertake any assessment.

26. The Applicant recognised that over the months since the children were taken he did not deal with the matter appropriately over – witness the overdoses. He now had a different outlook on life, and was putting all his efforts into getting his children back. He was working hard as he could 5 days a week, and was saving money. He was totally committed to working with social services. AH's controlling ways had over-influenced him. He was asking for another chance by being given permission to appeal. He had made mistakes and he wanted to show that could be a good father.

27. In response to a question from me, the Applicant reported that he had been having contact with the children for two hours a week in a contact centre, but that contact had stopped three weeks ago, and he had not seen the children since then.

28. The Applicant also made it clear to me that although he was not the father of NF, he did not want either child to be adopted, and would be happy to look after both children.

29. Having given careful thought to the merits of this case, I have come to the conclusion that an appeal against Judge Roddy's order would stand no reasonable prospect of success and that the application for permission to appeal must be refused.

30. In my judgment, both the order and the draft note of the judgment demonstrate that the judge did not make any error of law, and the conclusion she reached was one which she was plainly entitled to reach on the facts. In addition, of course, it represented the unanimous opinion of all the professional witnesses in the case. In my judgment, there is no prospect of the Applicant being able to satisfy the full court that the judge was plainly wrong.

31. The judge plainly applied the correct test under section 1 of the Children Act 1989, and under the 2002 Act. She was entitled to give weight to the appellant's untruthfulness, however, much he may now regret it. She was plainly entitled to follow the unanimous professional opinion.

32. In my view the Applicant's arguments under ECHR Article 8 are misconceived. Everyone, including the children in this case, has a respect for their family life. Every case under the Children Act involves a balance between the respective ECHR Article 8 rights of all the participants. The judge's task is to select an outcome which, in the judge' view, best serves the interests of the children. The judge was fully entitled to take the view that the best interests of the children required them to be adopted. The ECHR Article 8 rights of the adults are, in this sense, subservient to those of the children. The welfare of the children is paramount – that is to say more important than anything else.

33. The allegation that the judge was biased does not bear examination. There is simply no evidence for it whatsoever. The fact that she allowed one of AH's children to live with his father is not evidence of bias against the Applicant.

34. I have some sympathy for the Applicant. It is not every father who wishes to care for his child, and it is not every father who wishes to care for another's child. There is much about the Applicant which is admirable. Furthermore, he now recognises his past mistakes – particularly his lack of truthfulness. I hope very much that he has learned the lessons of this case. However, I am quite satisfied that the judge was entitled to hold, as she did, that it was, in real terms, too late for these two children to be returned to the care of the Applicant, and that their future security and well-being required them to be adopted.

35. I remind the Applicant of the limited powers of this court. Judge Roddy clearly reached a conclusion which she was entitled to reach on the evidence. In so doing, she made no error of law, and exercised her judicial discretion in a manner which was plainly open to her. Accordingly, this court cannot interfere with her decision.

36. The application will, accordingly, be dismissed.

Extract from the decision of the court of appeal in Re W (children) [2007] EWCA (Civ)
The role and powers of the Court of Appeal in cases relating to children
13. As will be apparent from a simple reading of the order, there is a substantial history to this case. However, before examining it, we propose to explain to GW (and to other applicants who, like him, appear in this court as litigants in person) the limited role which this court has to play in applications for permission to appeal against orders for residence and contact made under Part II of the Children Act 1989 in proceedings between the children's parents or other family members.

14. Many applicants for permission to appeal come to this court in the belief that it has much wider powers than it actually enjoys. GW is no exception. At many places in the documentation before us, GW repeats the relief which he seeks. He says:-

The way forward –Shared Residence W (children)

The court is invited to

o grant FATHER permission to appeal against the orders of 7th March 2007
o set aside Mr. Justice McFarlane's unlawful orders and erred judgment of 7 / 03/ 07
o set aside Mother's resident unlawful order of HHJ Hallon of 27 October 2004
o grant W (Children) SHARED Residence Order to both parents

15. GW continues: -

I (GW) respectfully remind the honourable Court of Appeal of LJ WARD finding "as I listen to Mr W, that there may have been a Serious injustice done is this case, Both regard to the making of the section 91(14) order [HHJ Hamilton QC, 01/02/2005] and the Contact Order (Mothers W (Children) (Residence) Ordered by [HHJ Hallon on 27/10/2004]. I respectfully ask the honourable Court of Appeal to revoke, set side the respondent Mothers section 8 residence order of 27th October 2004 and to grant both parents a JOINT SHARED RESIDENCE ORDER and restore my children W & L lives, back in their devoted Father and Paternal Grandparents life and restore our family home life.

16. These extracts demonstrate that GW, in common with many other litigants in person, appears to think that this court has powers on an application for permission to appeal which it simply does not have. The only matter for this court on GW's application for permission to appeal against the order made by McFarlane J on 7 March 2007 is whether or not GW has an arguable case, fit to present to the full court on appeal, that McFarlane J's order was plainly wrong. We simply do not have the jurisdiction to deal with the remaining three matters he identifies.

17. The phrase "plainly wrong" derives from the speech of Lord Fraser of Tullybelton in the decision of the House of Lords in G v G [1985] 1 WLR 647. Although the case is well known to lawyers, it does not appear to so well known to litigants in person, even those with a knowledge of the English and European jurisprudence such as GW displays. The relevant part of the headnote to that case reads as follows:-
….. an appellate court reviewing the decision of a judge in the exercise of his discretion relating to the custody and welfare of children, was bound by the principle applicable to any appeal from the exercise of a judicial discretion, namely that before it could intervene, it had to be satisfied, not merely that the judge had made a decision with which the court might reasonably disagree, but that his decision was so plainly wrong that the only legitimate conclusion was that he had erred in the exercise of his discretion; and that, accordingly, the Court of Appeal had applied the correct principle in declining to interfere with the decision of the judge who had heard the witnesses and considered all the evidence.

18. G v G was, of course, decided before the passing of the Children Act 1989, and the Human Rights Act 1998. It was also passed at a time when litigants did not need permission in order to appeal to this court in cases relating to children. There is, however, no doubt that it remains the law, and has frequently been cited. As a decision of the House of Lords, it is binding on us.

19. It is plain from the documents he has supplied that GW has access to the Law Reports, and we will, therefore, only give one short extract from the case in which Lord Fraser, [1985] 1 WLE 647 at page 651 cited and approved the following extract from a judgment, equally well known to lawyers, namely that of Cumming-Bruce LJ in the case of Clarke-Hunt v Newcombe (1982) 4 FLR 482. In that case, Cumming-Bruce LJ compared the functions of the judge at first instance with the judge in the Court of Appeal. This is part of what he said:-

Whether I would have decided it the same way if I had been in the position of the trial judge I do not know. I might have taken the same course as the judge and I might not, but I was never in that situation. I am sitting in the Court of Appeal deciding a quite different question: has it been shown that the judge to whom Parliament has confided the exercise of discretion, plainly got the wrong answer? I emphasise the word "plainly". In spite of the efforts of [counsel] the answer to that question clearly must be that the judge has not been shown plainly to have got it wrong.

20. GW, therefore, and others in his position must understand that our function in the present case is very limited indeed. Our task is to review the decision made by McFarlane J on 7 March 2007. We have to put to ourselves the proposition set out in the second sentence of paragraph 16 above. That question itself can be broken down to the following;

  1. Did the judge arguably make any error of law in reaching his conclusion?
  2. Was there, arguably, insufficient material on which the judge could properly make the findings of fact and the assessments of the witness which he did make?
  3. Is it arguable that the order he made was not properly open to him in the exercise of his judicial discretion?
  4. Is there, arguably, any error in the exercise of that discretion which enables us to say that his order was, arguably, plainly wrong?

21. It is only if the answer to any one of these questions is "yes" that we can give GW permission to appeal. We are thus considering only the first of the four points identified by GW as set out in paragraph 14 above. We stress that this is not a matter of choice. The Court of Appeal, as GW himself points out in the papers presented to us, is a court created by Parliament, and governed by Act of Parliament, currently the Supreme Court Act 1981. Under that Act and the Civil Procedure Rules 1998, the only points we have jurisdiction to consider are whether or not GW should be granted permission to appeal against McFarlane J's order of 7 March 2007, and whether, in so doing, he should be permitted to adduce fresh evidence.

22. GW (and others in his position) must also understand that because the only order which we can consider is that made by McFarlane J on 7 March 2007, we cannot go behind any of the earlier orders made in this case. We do not propose to identify each and every order made. It is sufficient for this purposes if we simply record that some have not been appealed; in relation to others permission to appeal has been refused. In two instances, to which we shall come, permission to appeal was granted and GW's appeals allowed.

23. We will, accordingly, need to look carefully at the effect of those grants of permission and the subsequent orders made by this court.

24. This is of particular importance in the present case, because - as this judgment will make clear - GW has throughout submitted, both in the papers and in oral argument before us on 6 July 2007, that the question of his contact with the children was finally determined by an order made in this court on 13 September 2005 by Ward. Rix and Moore-Bick LJJ. All subsequent orders, he argues, are, as a consequence, invalid. McFarlane J did not agree with that analysis. He attempted to explain in his judgment that GW was simply wrong in taking that view. We will, accordingly, need to decide whether or not it is arguable that the judge fell into error in this respect.

25. Furthermore, as GW's submission set out in paragraph 15 above shows, GW relies strongly on what Ward LJ said when hearing an application by GW for permission to appeal against an order made by HH Judge Hamilton on 1 February 2005. McFarlane J took the view that what Ward LJ said on that occasion had no relevance to his task in dealing with the applications before him. Once again, we shall have to decide whether or not it is arguable that the judge was in error in so concluding.