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S (A CHILD) [2005] EWCA Civ 735

Appeal concerning 3 cross applications and the disclosure of information contained in Form F to the mother who is opposing a freeing order.


Neutral Citation Number: [2005] EWCA Civ 735





Royal Courts of Justice


London, WC2

Thursday, 19th May 2005

B E F O R E:



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(Computer-Aided Transcript of the Stenograph Notes of

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MR L SWIFT QC AND MISS J MURRAY (instructed by Swindon Borough Council) appeared on behalf of the Applicant

MR H TRAVERS (instructed by Bevirs) appeared on behalf of the First Respondent

The Second Respondent was not represented

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(As Approved by the Court)

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1. LORD JUSTICE THORPE: This appeal raises a relatively short point on the procedure which should govern the determination of cross-applications in care proceedings and the extent to which fairness and rights to a fair trial oblige the disclosure of information to a parent opposing a freeing order application.

2. We are concerned with a child born on 16th March 2001. He has had a very troubled life. His father figure has been committed to prison on two occasions during L's brief life. Certainly he was in the community at the time when a care order was made, 17th June 2003, but he was not on the scene when rehabilitation took place in August 2003. When he was discovered on the mother's premises and arrested for outstanding offences on 28th January 2004, L was removed to foster care. Following that arrest, he was sentenced to a term of imprisonment which it is estimated will terminate in the spring of 2006.

3. Proceedings in relation to L were revived by the mother's application to discharge the care order and for an increase in her contact. Presumably the basis of that application was that the father was again off the scene. The local authority had the intention of moving L to adoption under the terms of their care plan. The Adoption Panel had concluded on 14th June 2004 that L's best interests would be served by adoption. Accordingly, on 12th July the local authority applied for a freeing order. The third application issued in relation to L was the application of his maternal step-grandmother for a residence order.

4. These cross-applications were listed before Mr Recorder Tolson QC in the Swindon County Court on 9th March 2005. He heard evidence and on the second day, perceiving that the local authority had already identified potential adopters for L, he asked to see the information relating to the selected couple. Although the local authority were understandably and correctly concerned as to maintaining the confidentiality of the potential adopters, they had little option but to disclose to the judge and to the guardian the Form F.

5. The evidence was largely concluded on the second day, save that the guardian had yet to testify. It was therefore adjourned for approximately a fortnight, and over that adjournment the local authority were requested by the court to produce an anonymised version of the Form F. That was an extremely difficult task, given its contents, and accordingly when the court resumed on 24th March, the judge himself drew up a schedule of facts which he considered should be disclosed to the mother. The facts were, of course, distilled from the Form F.

6. The local authority, fully supported by the guardian, endeavoured to dissuade the Recorder from that course, on the simple ground that were the information on the judge's schedule released to the mother and to the maternal step-grandmother, an immediate consequence would be the loss of the prospective adoptive placement. The local authority had been to considerable lengths in their search for prospective adopters. That search had only revealed three possible families, two of which had to be eliminated on further enquiry. Thus, the family that the local authority were in March concentrating upon were the only available family. Were they to withdraw from their prospective adoption application, the consequence for L would be both grave and far-reaching.

7. The Recorder first of all heard the issue argued. Naturally, in the absence of counsel for the mother and in the absence of the maternal step-grandmother, who was in person. He ruled first on the assumption that the prospective adopters were content to continue, given the extent to which his statement of facts had anonymised them. On that basis he ruled that the mother's entitlement to all relevant information prevailed. There was then a short adjournment after which counsel for the local authority informed the judge that he had, through no fault of his own, proceeded on an erroneous assumption. The reality was, counsel informed the judge, that even the anonymised summary which he had himself composed would destroy the prospective couple's readiness to adopt if disclosed to the mother. Accordingly, the judge conducted his discretionary appraisal again but reached the same conclusion. The application for permission to appeal was refused but the Recorder granted a stay to ensure that the information that the local authority objected to disclose would remain secret, pending the review of this court.

8. The application for permission to this court was filed on 7th April and supported by a full skeleton settled by Mr Lionel Swift QC and Miss Murray, his junior, who appeared below. Mr Swift also filed a brief skeleton on behalf of the guardian who he also represents on this appeal. I gave a conventional direction to bring this case in as soon as possible, namely an oral hearing on notice with appeal to follow if permission granted. However, I had not focussed on the unusual fact that two of the respondents, the mother and Mrs Hill, had played no part below and accordingly had no role in this court. Some sort of informal notice was given to the mother's solicitors which led Mr Travers, who appeared for her below, to seek to clarify with the court what was the nature of his involvement. He, of course, knew that he had not been involved in the debate before the judge. Unfortunately, he was unable to get through to either of the lawyers dealing with family appeals and out of caution he has appeared this morning to offer his assistance to the court if required. We swiftly released him and equally swiftly concluded the oral submissions of Mr Swift.

9. It was possible so to do since in an admirably clear skeleton, Mr Swift had demonstrated that the judge had plainly fallen into procedural error. There is clear authority in the cases of Re:D (simultaneous applications for care order and freeing order) [1992] 2 FLR 49, and Re:N (Care Order: Freeing Application) [2004] 1 FLR 826 that indicates that where a judge has a number of applications to determine, applications going to the determination of both the status of care and of an application to adopt, the proper procedure is for the judge first to determine the care order application, or the application for the discharge of the care order, before proceeding to consider either the adoption or the freeing order application. There is an obvious logical foundation for that procedure. Until the local authority has established that the child's future is inevitably in care and out of the family, the application for freeing or for adoption simply does not arise.

10. So in this case there can be no doubt that the judge erred procedurally. He should first of all have determined conclusively the mother's application for the discharge of a care order. Obviously if that application failed, Mrs Hill's supportive application for a residence order would fall with it. Only then did it become necessary for a judge to consider the freeing order application. So on that procedural point, Mr Swift's submissions are fully accepted.

11. He naturally requires also a ruling from this court on the submission that the judge fell into fundamental error in the exercise of the balance which led him to the conclusion that the schedule he had compiled must be disclosed to the mother. Mr Swift says that first of all the decision was plainly wrong. Alternatively, the balancing exercise was flawed by the judge's failure to give proper weight to L's age and his urgent need for a settled future in a stable family. Equally, the judge failed to give sufficient weight to the grave threat of interference by the father, whose release from prison was imminent in the timescale of placement and settlement in a new family. I am in no doubt at all that Mr Swift is entitled to succeed in those submissions as well.

12. The judge had the advantage of citation by Miss Murray of the cases of Re:D (Adoption Reports: Confidentiality) [1995] 2 FLR 687 and Re:K (Adoption: Disclosure of Information) [1997] 2 FLR 74. Unfortunately, those citations do not seem to have led the judge to the proper conclusion. I would accept Mr Swift's submission that he was plainly wrong. I would further accept his submission that he gave insufficient weight both to L's strong and urgent need for placement in a new family and also to the threat posed by a dangerous father.

13. The case of Re:K was a decision of Wall J at first instance, and in the course of his judgment he rightly referred to the decision of this court in Re:S (a Minor)(Adoption) [1993] 2 FLR 2004. He had in fact appeared in that case as leading counsel for the guardian, and his submissions had not been accepted. Accordingly, since the issue was only recent history for him, it is not surprising that he remembered and cited the authority. It does seem to me to be the case that most clearly applies, and it has the authority of a decision of a decision of the Court of Appeal constituted by Sir Thomas Bingham MR, Butler Sloss and Hoffman LJs. The headnote sufficiently establishes the principles that apply to the present appeal. Having established that particular characteristics of prospective adopters were of no relevance at all to the determination of applications for the discharge of care orders, the headnote continues:

"As regards the Adoption Act proceedings, the mother had a right to oppose the particular adoption as well as the concept of adoption. That did not, however, entitle her to receive confidential information provided to the judge since under the Act and the Rules, all the information elected for the court was confidential until it was disclosed and the possibility was recognised of legal advisors being given information denied to their clients. In any event, unless the disability of the prospective adopter made him unsuitable to be a father, which was a question for the judge, it was unlikely to make a difference to the mother's case. Therefore, although there should be no unnecessary secrecy, the court had to balance the provision of information, not in itself of great significance for the future welfare of the child, against the risk to the child of the identification of placement and the destabilisation of his future home."

14. The present case is even stronger than that there considered by the court. Here we are not dealing with a specific application to adopt by specific adopters. We are here considering a freeing order application essentially focusing on the concept of adoption. Furthermore, the matters that the judge, in the exercise of his discretion, sought to disclose to the mother did not demonstrate any disability in the prospective adopters. Plainly a proper exercise of the balance requires the freeing order application to be determined without the revelation of the judge's summary of facts descriptive of the potential adopters. That information will remain within the appraisal of the judge and the guardian and, to the extent that it is of any relevance, it can safely be tested within those boundaries.

15. This case obviously depends much on its particular facts and there may be circumstances in which the importance of disclosure outweighs any considerations of child welfare. There may be cases in which there is information that would, if accepted untested, go to the discredit of the natural parent, and fairness in that circumstance might require disclosure. But this is not such a case and I reach the conclusion, as I have already said, that the judge simply over-estimated his obligation to do what he saw as fairness to the natural family.

16. The appeal will therefore be allowed. The case will return to the Swindon County Court for completion by the judge. The route that he is to take is plain. He must determine the application for discharge. He will then determine the application for a residence order. Those applications determined, he will proceed to the freeing order application. It is quite plain in all that I have said that he must determine the freeing order application on the conventional basis, and the content of the Form F is not for disclosure to the mother when she puts forward her case that she has reasonable grounds for withholding her consent.


Order: Appeal allowed