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Re J (A Child) [2006] EWCA Civ 163

Permission to appeal against care order refused, but separate hearing on scope of section 91(14) orders directed.

Re J (A Child) [2006] EWCA Civ 163

Court of Appeal: Wall LJ (9 March 2006)

Permission to appeal against care order refused, but separate hearing on scope of section 91(14) orders directed.

This case concerned a child, born in November 1992, who was subject to a care order made by a district judge in February 2002. In June 2005, on the mother's application for permission to appeal against that order, a Family Division judge dismissed the application, with the effect that the child, who was autistic and had previously been in foster care, continued to live with the father under the terms of the local authority's care plan; the judge also made an order against the mother under section 91(14) of the Children Act 1989 that she was not to make any further application in respect of the child until he reached the age of 18 without the leave of a Family Division judge.

The mother appealed, contending that the judge had erred in law and was plainly wrong in upholding the previous orders; she also relied on alleged violations of her human rights under the European Convention, notably Articles 3, 6, 8, 10 and 14.

The court in this case set out clearly and succinctly its role as a reviewing court, not a court of trial, and referred to the mother's delay in applying: the time limit for applying for permission to appeal such an order was 14 days, so there had to be some compelling reason for a grant of permission to appeal some four years later.

Held, refusing the application for permission to appeal, that the judge had correctly concluded that the judgment of the district judge was plainly right; and there was no merit in any of the mother's arguments under the European Convention.

However, the court expressed concern about the section 91(14) order: whilst the implementation of the care plan was plainly a matter for the local authority, and not to be overseen by the court, there were legitimate concerns in relation to the child's placement with his father, and it was possible that the local authority may, in the future, have to remove the child from his father's care. The mother retained parental responsibility for the child and, given the limitations on a parent's power to challenge any change by a local authority in its care plan, there was cause for concern about an order which effectively prevented the mother from making any application to the court without permission throughout the child's minority.

Accordingly, the court ordered that this part of the application should be adjourned, and a hearing before two judges should be fixed at which an advocate appointed by CAFCASS Legal would advise the court on the proper limits of section 91(14); if possible, at least one other case should be identified in which the same or a similar point had arisen, so that the court could give guidance to the judiciary on the extent to which it was permissible to impose conditions on section 91(14) orders.

Read the full text of the judgment here