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M-B & D (Children) [2005] EWCA Civ 474

Application for permission to appeal in various care proceedings

Case No: B4/2004/0793, 0794 & 2022 & B4/2005/ 0349-0350,0386, 0395-0396, 0466 & 0494-0496

Neutral Citation Number: [2005] EWCA Civ 474








Royal Courts of Justice

Strand, London, WC2A 2LL

Tuesday, 26 April 2005



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Re: M-B & D (Children)

Re: J-B (A Child)

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(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

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Mrs MD (In Person)

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As Approved by the Court

Crown Copyright ©

Lord Justice Wall :

1. The appellant, Mrs. MD, applies to this court for permission to appeal against a number of orders made in the context of three sets of family proceedings relating to her children. These are (1) care proceedings relating to all the children in the Inner London and City Family Proceedings Court (IL&CFPC) and on appeal from that court to the Family Division of the High Court of Justice; (2) injunction proceedings under the inherent jurisdiction of the High Court; and (3) proceedings to free the appellant's youngest child for adoption, transferred from the IL&CFPC to the Principal Registry of the Family Division (PRFD).

2. All in all, there are twelve applications for permission to appeal before this court. I heard them, sitting alone, on 14 April 2005. The appellant is a litigant in person. At the outset of the hearing, she applied for an adjournment, which I refused. At the conclusion of her submissions, I reserved judgment, and said I would put my decision into writing. This I now do.

3. The appellant is the mother of five children. They are:-

i) L was born on the 16th November 1992;

ii) M was born on the 20th August 1994;

iii) N was born on the 1st May 1999;

iv) C was born on the 26th August 2000; and

v) I was born on the 28th November 2003.

4. From this point on, I will refer to the children by their initials. Thus, L, the oldest is 12. M is 10. N is 5 and will be six on 1 May 2005. C, the only boy, is 4 and I, the youngest, is now aged 16 months. I will refer to Mrs. Davis as the appellant. Nothing must be published which identifies any of the children.

5. All five children were the subject of care proceedings instituted by the London Borough of Hackney (the local authority). There have been many hearings and many orders. The status of the children as of this moment is as follows. L and M are the subject of final care orders made in the IL&CFPC by District Judge (Magistrates Court) (DJ(MC)) Perkins on 18 March 2003. They have been placed together with long-term foster parents.

6. N and C are also the subject of final care orders, made in their case in the IL&CFPC on 2 July 2004 by DJ (MC) Perkins. They have been placed on a permanent basis with their paternal aunt and uncle.

7. I was also made the subject of a care order on 2 July 2004 in the IL&CFPC by DJ Perkins. In her case, however, the care plan was for adoption, and those proceedings were transferred to the Principal Registry of the Family Division for hearing. On 9 January 2005, HH Judge Horowitz QC freed I for adoption, in the process dispensing with the appellant's agreement.

8. In addition to the care and freeing proceedings, orders for injunctions have been made by two High Court judges exercising the inherent jurisdiction of the High Court. These were made by Roderic Wood J on 19 March 2004 and by Holman J on 10 September 2004. I shall return to the details of those orders, and the circumstances in which they came to be made, later in this judgment.

9. The appellant, as was her right, appealed against the orders made in the IL&CFPC, and on 8 December 2004, Ryder J handed down a reserved judgment following hearings conducted before him on 25 and 26 November 2004 and 1 December 2004. As he himself put it, in paragraph 9 of his judgment: -

"I have heard appeals out of time against every order made by a District Judge since the 8th January 2003 without prejudice to whether the test for an appeal out of time could be satisfied. I have done so in the context that from the outset (the appellant) asked for an adjournment of her appeals to permit of an unspecified amount of time for her to give greater consideration to the detail of her complaints and impliedly or expressly to represent herself. As will become clear, having heard the detail of (the appellant's) complaints and for the reasons that follow I have decided to refuse the application to adjourn and have proceeded to determine the merits of the appeals."

Ryder J dismissed all the appellant's appeals.

10. In addition to seeking permission to appeal against the orders made under the inherent jurisdiction by Roderic Wood J and Holman J referred to in paragraph 8 above (with which I will deal separately), the appellant now seeks permission from this court to appeal the following orders, which for ease of reference I list in chronological order: -

1. an order for directions made by Baron J on 11 June 2004 in proceedings AP6/04 (Court of Appeal reference B4/2005/0395);

2. an order for directions made by Bodey J dated 16 July 2004 in proceedings AP6/04: (Court of Appeal reference B4/2005/0386);

3. an order for directions made Roderic Wood J on 2 August 2004 in proceedings AP6/04 (Court of Appeal reference B4 2005 / 0396);

4. the order made by Ryder J dated 1 December 2004 in proceedings AP6/04: Court of Appeal reference B4 2005/0466) refusing the appellant's application for an adjournment and dismissing her appeals against the orders made in the IL&CFPC;

5. an order made by Ryder J on 1 December 2004 in proceedings FD04A00318 (the proceedings to free I for adoption: Court of Appeal reference B4 2005/0349) in which he gave permission (a) to I's guardian in those proceedings do disclose his report (suitably amended) to the appellant; and (b) to the local authority to disclose its report under Schedule 2 of the Adoption Act 1976 to the appellant;

6. an order made by HH Judge Horowitz QC on 10 December 2004 in proceedings FD04A 00318 (Court of Appeal reference B4 2005 / 0350) in which, on the appellant's application, he adjourned the final hearing of the proceedings to free I for adoption to 19 January 2005 and released Ryder J's judgment dated 8 December into both the freeing proceedings and the application for permission to appeal to this court against the injunctive orders made by Roderic Wood J and Holman J;

7. the order made by HH Judge Horowitz QC on 18 January 2005 in proceedings FD04A00318: Court of Appeal reference B4 2005 / 0496) in which he refused the appellant's application to adjourn the hearing;

8. the order made by HH Judge Horowitz QC on 18 January 2005 in proceedings FD04A00318 (Court of Appeal reference B4 2005 / 0495) in which he freed I for adoption; and

9. the order made by HH Judge Horowitz on 18 January 2005 in proceedings FD04A00318 (Court of Appeal reference B4 2005 / 0494) in which he made no order as to costs

11. As is apparent, the orders made in proceedings AP6 / 04 all relate to the appellant's attempts to challenge by way of appeal to the High Court the orders made in the IL&CFPC. The orders made in proceedings FD04A00318 relate to the local authority's application to free I for adoption.

The appellant's application for an adjournment

12. The appellant's first application when she appeared before me on 14 April 2005 was for an adjournment. This is an application she had made several times on paper prior to 14 April. The principal basis upon which the application was made was that she had not had sufficient time to prepare; that she had not had access to appropriate documentation, and that she had been unable to put together a consolidated bundle of documents. She also argued that the time set aside for the applications was inadequate, and that justice could not possibly be done to her case in an afternoon. She submitted that to continue with the hearings represented a serious breach of her rights under Article 6 ECHR.

13. The appellant also asserted that she had not seen a copy of the judgment handed down by Ryder J on 8 December dismissing her appeals against the various decisions of the IL&CFPC.

14. I refused the application. I did so for a number of reasons. Firstly, I was satisfied that the appellant had had sufficient time to prepare, and that the court staff had gone out of their way to assist her with the relevant documentation.

15. Secondly, although the appellant was now acting in person, it was clear from Ryder J's judgment handed down on 8 December 2004 that, as he put it, the appellant had "a complete mastery of the circumstances of her case". Ryder J had been entirely satisfied that both she and the lawyers then acting for her had had sufficient time to prepare for the hearing before him.

16. What also emerged clearly both from Ryder J's judgment, and the judgment given by HH Judge Horowitz QC on 18 January 2005 was the finding by both judges that the appellant, in the words of Ryder J "uses adjournment applications and the dispensation of professional advice as a weapon to delay proceedings and to seek to delay what is sadly an inevitable conclusion". A demonstration of this was the appellant's assertion before me that she had only received Ryder J's judgment on the morning of 14 April 2005. I found this an extraordinary assertion, not least because the judge had handed the judgment down as long ago as 8 December 2004, and HH Judge Horowitz QC had made an order on 10 December 2004 (admittedly in the appellant's absence) releasing the judgment into both the proceedings to free I for adoption and the application for permission to appeal against the injunctions made under the inherent jurisdiction.

17. I accordingly made enquiries as to when the appellant had received a copy of Ryder J's judgment. I have been shown correspondence from the local authority to the appellant. On 3 December 2004, Ms Deborah Hart wrote to the appellant advising her that the judgment was not going to be available until 8 December, on which date the local authority would arrange for it to be delivered to her; and on 9 December the judgment was delivered to the appellant by hand under cover of a letter bearing the same date. The appellant received a copy of the judgment of HH Judge Horowitz QC on 6 April 2005, when it was handed to her by a member of the court staff.

18. Finally, it was plain to me from the documents submitted by the appellant that her applications for permission to appeal against a number of the orders listed in paragraph 10 above were, for reasons I will explain, without any prospect of success, and that no purpose whatsoever would be served by an adjournment. .

19. The three critical aspects of the appellant's applications to this court are thus: (1) the attack on the injunctions made by Roderic Wood J and Holman J; (2) the attack on the judgment of Ryder J handed down on 8 December 2004; and (3) the attack on the decision of HH Judge Horowitz QC to free I for adoption. As to (1), the appellant was plainly ready and (for reasons I attempted to explain to her and will amplify later) was likely, at least in part, to succeed. Indeed, so much has been conceded in writing by the local authority. As to (2) the appellant had been fully prepared to argue her case before Ryder J: she had received the handed down judgment, and she was, in my view, fully capable of telling me both why she thought this court should entertain a second appeal and why the judge had been wrong. As to (3) the second appeal point did not arise, but once again, the appellant had the clear and careful judgment of HH Judge Horowitz QC and was perfectly capable of telling me why she thought the judge was wrong.

The applications for permission to appeal the orders of Baron J dated 11 June 2004, Bodey J dated 16 July 2004 and Roderic Wood J dated 2 August 2004

20. As I have already stated, all the appellant's appeals against the orders made in the IL&CFPC were heard by Ryder J on 25, 26 November, and 1 December 2004. His reserved judgment, explaining his conclusions, is dated 8 December 2004. It follows that all the orders made in the High Court prior to Ryder J's order of 1 December 2004 were, plainly, directions hearings preliminary to the final hearing before Ryder J. Thus, on 11 June 2004, Baron J adjourned the hearing of two of the appeals, consolidated them with the hearing of the appellant's appeals against the injunctive order made by Roderic Wood J on 19 March 2004 and gave directions for their listing. On 16 July 2004, Bodey J ordered that there should be a directions appointment on 2 August 2004 "to ensure that all necessary preparatory steps in respect of pending hearings have been and are taken". He directed the appellant to file and serve "a concise statement with numbered paragraphs on no more than 1 page of A4 paper setting out the matters with which she asks the court to deal". He ordered the local authority and the guardian to do the same and directed the local authority to file a bundle of relevant documents.

21. In compliance with this direction, the appellant's counsel, Miss Susan Glanville, prepared a skeleton argument dated 23 November 2004 clearly setting out the appellant's case, both in relation to her appeals from the orders made in the IL&CFPC and in relation to the injunctions made by Roderic Wood J and Holman J. That document was before Ryder J.

22. The directions appointment ordered by Bodey J came before Roderic Wood J on 2 August 2004. He directed the hearing of the consolidated appeals on 25 November 2004 with a time estimate of two days. Amongst other directions, he ordered that:

"The (appellant's) appeal against the order and power of arrest made by Roderic Wood J on 19 March 2004 be treated as an application to vary or discharge the said order and be heard together with the other appeals on 25 November 2004."

Whilst the appropriateness of Roderic Wood J's direction in relation to the appellant's appeal against the injunction he granted on 19 March 2004 may be questioned, the fact that he made it has not in the event affected the outcome of the appellant's application to this court for permission to appeal against it, since Ryder J in his judgment handed down on 8 December 2004 deliberately did not address the jurisdictional issues relating to the injunctive orders made by Roderic Wood J and Holman J. I will, accordingly, address these later in this judgment.

23. It is, therefore, entirely clear that the three orders made respectively by Baron J, Bodey J and Roderic Wood J prior to the substantive hearing of the appellant's appeals by Ryder J have fulfilled their purpose. They are no longer effective: they are spent. There is, accordingly, nothing to appeal against. As I endeavoured to explain to the appellant at the oral hearing, what she needed to concentrate on in relation to this part of the case was the order made by Ryder J dismissing her appeals.

24. In addition, of course, the applications for permission to appeal against these three orders are very substantially out of time, and permission to appeal would have been refused on this basis in any event.

25. However, as there is no purpose in any appeal against the three orders identified in this section of my judgment, permission to appeal against them is refused.

The judgment of Ryder J

26. In my judgment, the appellant faces two insuperable barriers in seeking permission to appeal the order made by Ryder J dismissing all her appeals from the IL&CFPC. The first is that this is a second appeal and thus caught by section 55(1) of the Access to Justice Act 1999 (AJA 1999). The second (assuming the appellant surmounts the first) is that Ryder J's judgment is, in my view, impregnable. It is a model of fairness, clarity, industry and good judgment. It goes to enormous lengths to ensure that every point has been covered. There are no errors of law, and the judge's review of the decisions of the IL&CFPC is immaculate.

27. AJA 1999, section 55(1) reads as follows:

Where an appeal is made to a county court or the High Court in relation to any matter, and on hearing the appeal the court makes a decision in relation to that matter, no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that –

(a) the appeal would raise an important point of principle or practice, or

(b) there is some other compelling reason for the Court of Appeal to hear it.

In my judgment, the appellant's application for permission to appeal against Ryder J's order is caught fair and square by this provision. I fully appreciate, of course, that every parent whose children are made the subject of care orders takes the view that the actions of the local authority give rise to important points of principle or practice. However, from an objective standpoint there is nothing unusual about the present case. The district judge in the IL&CFPC applied section 31 of the Children Act. He found its threshold provisions fulfilled and that care orders were appropriate. The various exercises of judicial fact-finding and discretion have been carefully and appropriately reviewed on appeal by a High Court judge, who has applied the law correctly, examined the appellant's complaints in detail and found that they have no substance. That, in my judgment, is the end of the matter. Parliament has legislated for one appeal from the IL&CFPC to the High Court unless section AJA 55(1)(a) or (b) comes into play. Neither does. The application for permission thus inevitably fails at the first hurdle.

28. As, however, this is a case involving children, I have read the documents, including the reasons given by District Judges Perkins and Crichton. I also note the lengths to which the court went to ensure that the appellant had the relevant documentation. Ryder J deals with one aspect of this in paragraph 11 of his judgment: -

"In addition, this court was able, in part due to pressure of time, to adjourn the appeals part heard to allow (the appellant) to undertake any further preparation she might have required (while still represented) and specifically to address any issues that might have arisen from the documentation. Although (the appellant) was unable to marshal the required documentation for an appeal under rule 4.22 of the Family Proceedings Rules 1991, the local authority and the administration and justices clerks at Wells Street undertook a Herculean task to ensure that all of the notes of evidence were before the court by the time of the resumed hearing. I am extremely grateful to them for the time and resources expended on that task."

29. From my own reading of the papers, I also find myself in complete agreement with Ryder J's analysis of the proceedings in the IL&CFPC. I can do no better in this regard than to cite a substantial extract from his judgment to demonstrate the clarity and cogency of his conclusions: -

28. As respects the EPO application in relation to I: I, in common with the Guardian, have concerns about the clarity of thinking that was involved in the local authority's planning process before the birth of I and whether the obtaining of an EPO was a proportionate response to the gravity and nature of the harm that was feared. Even were I to find wholly in MD' favour on the serious Article 6 and 8 points that she impliedly raises, I must ask myself where that takes MD having regard to the fact that there was the opportunity for a fully contested interim care order hearing before District Judge Crichton on the 11th December 2003.

29. At that hearing mother was represented and having regard to the terms of the Reasons expressed by the Learned Judge it is clear that he had in mind the duty to secure MD' Article 6 and 8 rights. In other words, had there been an arbitrary interference in MD' rights and/or those of I in respect of the earlier process that was addressed and rectified by the careful and early hearing of a contested interim application. To conduct such an early hearing of core-contested issues is an example of best practice and I commend it. I note that MD has never formulated any criticism of the contested interim care order hearing and for the avoidance of doubt, I find in terms that there is no basis to assert that any error of law, fact or discretion occurred.

30. It should also be noted that on that occasion MD had the benefit of legal representation that for once was not dispensed with and that she conceded that the interim threshold was satisfied in respect of I. A careful examination of the concession document reveals the full extent of that which was conceded:

i) Per DJ Perkins: the (older) children had suffered and were likely to suffer significant harm as a result of mother's parenting and behaviour

ii) Per Dr Conn, psychologist: mother (has) not changed in any fundamental way

iii) Per Coombe Wood: mother has not changed such that a residential assessment is advisable

iv) Per Dr Turner, Psychiatrist: aspects of mother's behaviour had the features of a personality disorder with limited prospects for change.

31. In these appeals MD has made similar concessions before me. In being taken through the 16 carefully crafted findings of District Judge Perkins made on the 8th January 2003 she concedes that the older children suffered and were at risk of suffering emotional harm. That was in part in consequence of her own behaviours which pre-dated her relationship with Mr D and in part a consequence of the domestic and alcohol abuse prevalent in their relationship and for which blame is placed by her on Mr Davis.

32. The problems MD is recorded as having with neighbours and others pre-dated the relationship with Mr D. In evidence before me, MD conceded that the children were in need of better parenting because of her own behaviours and in particular her temper tantrums. MD went so far as to acknowledge that such was the cause for concern that she knew her behaviour needed to be altered and that her "bad behaviour" had a "bad impact on the children" who were "slap bang in the middle of it". She said that she had realised she needed help before her behaviour became uncontrollable. It is in this context that mother wanted and says she would have benefited from a residential assessment first with I, L and M and then, if successful, with N and C.

33. Prior to mother's application for a residential assessment there had been a full and adverse core assessment in March 2002. That was followed by further social work analysis and a detailed report by Dr Conn together with the viability assessment from Coombe Roderic Wood, which was not a paper exercise, i.e. Mother was involved. The duty on the local authority to assess MD in respect of her new child was technically satisfied, the only question was whether the foundation of fact upon which it relied was still securely based.

34. MD' only substantial complaint against the earlier factual findings of District Judge Perkins was that he accepted a detailed chronological record as if it were true when in fact, she says, he could and should have gone no further than to say that the record was reliably presented to the court not that its content was also reliable.

35. This argument is a commonplace in circumstances where the many contributors to social and health care records are either unidentified or have moved on and are not called to give evidence. On the facts of any one case, more or less weight can be placed on certain records dependent upon how, when and in what circumstances they are compiled. Even if apparently reliable and accurate, they may not in the absence of contemporaneous or direct corroboration be sufficient to satisfy the appropriate standard of proof of a fact in issue i.e. they may not be sufficiently cogent. In any event, a court of first instance will more often than not have to consider what reliance can be placed on material that is not susceptible of cross-examination.

36. Having regard to the threshold concessions made to District Judge Crichton, the concessions made before me and the overall context of the facts that had previously been found by District Judge Perkins and not appealed, I can find no basis for the contention that the factual basis for the learned Judge's consideration of the a residential assessment was plainly wrong.

37. MD did not appeal the earlier hearings that had been conducted by District Judge Perkins prior to her application for a residential assessment. She did not establish that the facts as found had changed. She did not present any prima facie case that would have led to a decision to undertake a residential assessment in light of the previous and current assessment materials that existed i.e. that there was evidence of a change in the risk the children were being protected from or as to her own capabilities to parent or protect. The decision to refuse such an assessment cannot be said to be wrong.

38. The Reasons of District Judge Perkins and their associated records are, if I may say so, a very careful, detailed and impressive example of good practice and well-researched decision making by the specialist judiciary.

39. I unhesitatingly find that (the appellant) uses adjournment applications and the dispensation of professional advice as a weapon to delay proceedings and to seek to delay what is sadly an inevitable conclusion, namely that all 5 of her children should be protected by care orders. I likewise hold that there are no grounds to disturb any of the orders made by the District Bench. I dismiss all of the appeals. For the avoidance of doubt, I reiterate that the additional evidence MD has suggested be heard could not if accepted change my conclusion on these appeals.

30. Far from the appellant's ECHR Article 6 rights being breached, as she complains, it seems to me that Ryder J bent over backwards to ensure that the appellant had a fair hearing. Accordingly, even if she were to surmount the AJA 1999 section 55(1) hurdle (which she does not) the appellant's application for permission to appeal against Ryder J's order dismissing her appeals from the IL&CFPC is without merit. It is, accordingly, refused.

The orders made by HH Judge Horowitz QC (a) to refuse an adjournment and (b) to free I for adoption

31. I have already made it clear that it was inappropriate for the appellant to apply after the final hearing before Ryder J for permission to appeal against orders for directions designed to ensure that everything was properly in order for that final hearing. Similar considerations apply to the orders numbered 5 and 6 in paragraph 10 above. Ryder J's order on 1 December 2004 (number 5 in the list) for the disclosure of reports in the freeing proceedings to the appellant was, in addition, an order in the appellant's favour, as was HH Judge Horowitz QC's order on 10 December 2004 (numbered 6 in paragraph 10 above) granting the appellant an adjournment. Equally, the judge's decision to make no order as to costs in the freeing proceedings (number 9 in paragraph 10 above) is unassailable and in no sense hostile to the appellant. The appellant's application for permission to appeal against these three orders is, accordingly, without merit and is refused.

32. The two orders which require further consideration are (1) HH Judge Horowitz QC's refusal on 18 January 2005 to grant the appellant an adjournment; and (2) his decision to free I for adoption. I will consider each of these in turn.

The application to adjourn

33. The judge describes how he dealt with the appellant's application in paragraphs 7 and 8 of his judgment. This is what he said: -

7. It became apparent in the mother's evidence that she would have preferred an adjournment. I took her application from the witness box and considered it. She told me that she wanted access to documentation. She told me that she wanted access to lawyers. She told me that there had been inability, that she was unable, to get hold of lawyers because an embargo on her legal aid certificate. On investigation, that turned out to be that she had had her care proceedings certificate cut off in July; not a certificate- there does not ever appear to have been one- in these freeing proceedings.

8. I reminded myself that there had been a similar application from Ryder J., who devoted time and care to an analysis of the procedural history. He noted that Mrs D had had a number of lawyers acting for her and, indeed, she had arrived at court on 25th and 26th November last, with both solicitors and counsel. She dispensed with counsel on the basis apparently that they did not appear either sufficiently committed or sufficiently experienced in the field. She was urged (as I am told she has been urged on other occasions in the past) to make sure that she was properly represented. Mr Justice Ryder described her as a lady with a complete mastery of the circumstances of her case and was satisfied that her (then) lawyers had sufficient time to prepare. Having heard Mrs D give evidence, she certainly knows a lot of the facts in the case and has a layperson's perception of which are the important ones and which are the unimportant ones. But I have to weigh such as there appear to be to adjourn, against the urgent need to avoid delay where appropriate, having regard to the best interests of the child. I ruled then that, for reasons I spelt out more comprehensively, the adjournment application was refused."

34. We do not appear to have a transcript of the detailed reasons the judge gave for refusing the appellant's application for an adjournment. In my judgment, we do not need one. The grant or refusal of an application for an adjournment is a balancing exercise and a matter of judicial discretion. This court can only interfere with the exercise of such a discretion if it was plainly wrong. Paragraph 7 of Judge Horowitz's judgment sets out the appellant's case. The essential balancing exercise is conducted at the end of paragraph 8. There had already been one adjournment. The judge plainly took the view that I's interests and the urgent need to avoid further delay in deciding I's future prevailed over the arguments advanced by the appellant.

35. In the grounds of appeal contained in her appellant's notice in relation to this application, the appellant repeats her assertion that she is in urgent need of legal aid funding and legal representation to proceed with her numerous ongoing appeals. She adds: -

"Social services and the Judges and clerks of court were all also fully aware to that I was put into a position unfairly on 19th i.05 to produce evidence of a fundamental change to stop (I) being adopted. It was totally unacceptable and unfair that the judge refused me an adjournment to the next day to obtain this vital evidence …. "

The appellant does not identify the "vital evidence", nor does the judge mention it amongst the arguments advanced to him by the appellant on 19 January 2005. It is, in any event, difficult to see what that evidence could be, or why it was not available on 19 January 2005.

36. I am accordingly quite satisfied that the judge was acting within the exercise of an appropriate discretion in refusing an adjournment, and that an appeal against his decision not to adjourn would have no prospects of success.

The order to free I for adoption

37. The appellant's difficulties here begin with the fact that I had already been made the subject of a care order with a care plan for adoption. Moreover, she had been removed from the appellant's care on 28 November 2003, within some three days of her birth. She had not lived with the appellant since, nor had the appellant seen her since March 2004.

38. The judge identified the well-known two-stage process for dealing with freeing applications. Firstly, would adoption safeguard and promote the welfare of I throughout her childhood? Secondly, if the answer to the first question was "yes", was the appellant unreasonably withholding her consent to I being freed for adoption?

39. A critical part of the answer to the first question was for the judge to decide whether there was any realistic prospect of I returning to live in the appellant's care. The judge addressed that, as he had to, by reference, to the findings made in the care proceedings. In paragraphs 10 to 12 of his judgment, he said:

10. District Judge Perkins found that the threshold for taking care proceedings in respect of Ivana was proved in his judgement on 19th March of last year. His reasons are to be found in a long para. 9, which starts at D.46 in our bundle and goes on to D.50. I adopt and incorporate his reasons and note that it is quite true that the local authority was relying, in the case of so young a child, on past history as a guide to future harm; that is entirely consistent with good practice. So, too, was the attempt to form an assessment of the mother. Dr. Conn, a chartered psychologist, I note, was instructed to prepare a report by the guardian. He gave evidence and produced a report dated 6th August 2003. He reported that he had found no change in the mother at the psychological level and was satisfied, from what he had read in a handwritten statement the mother produced dated 15th March for 19th March hearing, that nothing had changed: she remained, it was his opinion, in denial of her own problems, unable to comprehend why the children are not able to be with her. While accepting that the mother was under considerable stress exacerbated by her own condition, which led her to cope poorly, he maintained that the long history of her behaviour and personality difficulties was the best indicator of future behaviour and added this. He did not believe that therapy could help on any time scale acceptable to I. There would be uncertainty as to its success, as Mrs D finds it hard to accept that she needs such help at all and would therefore be unable to access therapeutic input. He considered changes in Mrs D' personal circumstances, in particular her separation from Mr. D – who gave her a very hard time indeed, so I understand – but he was nonetheless not persuaded that there was now more positive prognosis. It was, he opined, the fact that her problems pre-dated that relationship and there had been difficulties since the breakdown of that relationship. So, overall, he was pessimistic not only as to change which had occurred but ability to make a change in the future; without that change, he believed, I would suffer harm similar to that experienced by her siblings, in respect of whom the threshold has been crossed in parallel proceedings.

11. Her social worker, Mr Wade, is recorded at that hearing as giving evidence that Mrs. D' behaviour was challenging and difficult on occasions, although he thought that he had a good relationship with her. Nonetheless there remained concerns flowing from the mother's past behaviour. Dr. Conn's view was confirmed by a consultant psychiatrist's report. He is described as Dr. Taylor but he is plainly Dr. Turner. He made a report dated 15th August 2003. It was his professional assessment that the mother was then suffering from mixed and other personality disorders, although he found no evidence of a formal mental illness. He confirmed that diagnosis by a letter he sent to the mother's solicitors later in the year, in November. He said:

There is no treatment known to be effective for management of people with longstanding problems of personality style, particularly the less specific forms of personality disorder.

His prognosis for improvement, too, was poor. His view, as recorded by Perkins D.J., which not only am I bound to accept but I also expressly incorporate, was that there was a limited likelihood of her changing her pattern of social behaviour over the course of the next five years, and so, said Perkins D.J., that is clearly too uncertain and too long a period for the children and it was that long history of social behaviour that substantially contributed to the significant harm the older children suffered.

12. The guardian fully supported the local authority's care proposals. He referred, in his report then before the court, to a number of concerns at some of the mother's behaviour in contact, particularly an ability to restrain herself from informing the older children of her determination to ensure that they will live with her. District Judge Perkins recorded:

The guardian has no doubt, that I would be harmed emotionally and be likely to be physically affected if she returned to Mrs. D.

There is further reference in the judgment to one or two other incidents but that is the bones of the threshold finding, which led to a care order being made on 1st July, approval, as I have already said, of the adoptive placement and the adoptive placement on 22nd September 2004.

40. After referring to the evidence filed in the freeing proceedings, the judge reached his careful conclusion in the following way:-

14. I operate then on the basis that this is a little girl who has been removed at a very early age. I operate on the basis that the court was satisfied in March 2004 that the threshold had been crossed and a proposal for an adoptive placement as an element in the care plan was also approved by the court and there has since been a successful placement. I know that it is the proposal of the local authority that that placement will include contact with the three sisters and the brother probably at the rate of once or twice a year but I think the fine-tuning to be worked out. I know little more of the prospective adopters other than they do not have children of their own and , as recorded in the papers, the wife of the adopting couple is Afro-Caribbean and the father white, which does not exactly parallel but matches, two important strands of I's heritage on the basis that it is believed that her father is Afro-Caribbean. I say "believed" because the mother has always maintained that the father is a man described as John Baptiste. There is, it seems a DNA test, which says he is not. The mother says that she does not accept that, but it is certainly the case that scientific testing has excluded him; it is also the factual case that he has played no part in the proceedings. Mr D is not, on any view, a candidate for paternity and so I am simply dealing in this case with the consent or otherwise of one parent.

15. What does the mother say in opposition to the proposal to adopt in accordance with the care plan? "Well", she says, " I have been the victim of grave injustice by the removal of my children particularly the older four." The evidence, which I have, which is brief, in the material is that the placement for the four older children are broadly successful. Two are placements within the wider family. The mother says that she has had various reports of this and that things are going wrong, but, given that she has not seen the children for ten months save for last Saturday's outing, she is not able really, it seems to me, to bring any counterevidence to bear. The mother says that she has had therapy, no thanks to the local authority, whom, she said, had done nothing to help it and she has spent a lot of her own money and resources for therapy. When she was asked by counsel for the local authority to give specifics, she did not really come up with proof. So there is very grave doubt indeed whether the mother can cross that hurdle defined by a psychologist and a psychiatrist, both of whom said that she had a level of personality disorder not capable of treatment in any realistic timetable.

16. The mother says that the local authority have done little or nothing to check out whether she could make a go of it. The counter-side of that is, firstly, that the local authority established to the satisfaction of a careful and exhaustive inquiry that she was not then capable of looking after the children and, more importantly, there is ample evidence before me that the mother has done little, very very little, if not nothing, to make herself available for any such help. She may complain – and she is probably right – that there have been nine social workers. One knows they change, that is the way of life, given the resources and calls on resources, of inner London authorities. But I have seen nothing in the papers to suggest that she has made herself available for such help as may be given to her; that she has presented a case to the local authority to persuade them that things may have change. There has certainly been no application to discharge the care order. She has not put herself forward for any positive assessment or any assessment by the guardian.

17. The mother complains that everything stacked against her are old grounds, particularly relating to the D's marriage. They may be old grounds but they are the evidence, which was before the court, which, on a balance of probabilities, thought that there was a likelihood of future harm. As I say, it is difficult to isolate where there might be any evidence going other way. The mother says that a lot of her troubles really flowed from the D's marriage and things have changed. As I have pointed out from excerpts, which are only excerpts, from the judgement of Perkins D.J., that the grappled with quite clearly and head-on both by the advising experts and by the district judge himself in March 2004: that the problems which the mother was manifesting appeared both to proceed and to be independent of (though, no doubt they were exaggerated by) the difficulties in that marriage. There is nothing sold going the other way.

18. Overall, I ask myself, is there any realistic prospect here of I being reunited with her mother and any serious prospect of her being safely and securely, on the evidence we have, brought up by her mother, by a form of order which satisfied the court as being in Ivana's best interests? The answer clearly, sadly, must be there is no such realistic prospect whatsoever. It is on that basis that I turn then to consider whether adoption is in I's best interests. Given her age, her history and a successful placement as attested by the reports I have read, it seems to me clearly established that an adoption order is the form of order best placed to promote Ivana's welfare throughout her childhood and that making of such an order is manifestly in her best interests."

41. I cannot fault that reasoning. Indeed, on the evidence available to the judge, there is no other conclusion, which he could have reached.

42. The judge was thus plainly correct to find that adoption would safeguard and promote I's interests throughout her childhood. He then turned to the question of the appellant's agreement. This is what he said:-

19. I then have to ask a separate question, which does not necessarily follow from the first: do I dispense with the mother's consent on grounds established on the balance of probabilities? I have already sketched out that my task is to have regard to the evidence, apply the current values of our society and ask whether the advantages of adoption for Ivana's welfare are sufficiently strong to justify overriding the views and interests of the objecting parent. It seems to me that the case for coming to that conclusion is irresistible and, accordingly, I dispense with the mother's consent.

20. I should add this. I must also have in mind the parallel test of asking whether making an adoption order, which is draconian, the highest interference in family life, is consistent with both mother and child's right to family life under Article 8 of the European Convention? I am quite satisfied, equally, that the freeing order is made according to law because the proper procedures have been followed, that it is proportionate to Ivana's needs and consistent generally with the values of a democratic society. So I do not find any reason to take a different view by applying the parallel check of the European Convention under Article 8."

Once again, I agree with the judge's reasoning. There is certainly no arguable case for saying he was plainly wrong.

43. Much of what the appellant put to the court in argument on 14 April 2005 related to the evidence which various courts had heard and which, the appellant argued, they had misunderstood. Those arguments do not help the appellant in this court. The IL&CFPC conducted the fact-findings exercises. That court made findings, which it was entitled to make, even if the appellant disagrees with them. Those findings have been reviewed by Ryder J. HH Judge Horowitz QC was fully entitled to base himself, as he did, on the same findings.

44. It is sometimes said of freeing applications that it is unfair for a parent to be faced with the decision to give or withhold agreement in the immediate aftermath of a care order being made. That is not the case here. The appellant had abundant time to consider her position, and made it very clear that she was opposed to adoption. Unfortunately for her, I's position cried out for a permanent placement in an alternative household. That is what Judge Horowitz has achieved. He was right to do so. He approached the application in the right way, and applied settled case law to it appropriately. An appeal against his decision to free I for adoption would have no prospect of success, and the appellant's application for permission to appeal is accordingly refused.

The injunctions

45. This leaves the appellant's application for permission to appeal against the injunctions made respectively by Roderic Wood J on 18 March 2004 and by Holman J on 10 September 2004. These include an application for an extension of time. On this part of the case, the appellant in my judgment, is on stronger ground.

46. In a nutshell, the reason the local authority applied to Roderic Wood J in the High Court for an injunction was that it feared the appellant would disrupt the children's respective placements and harass their respective carers. At the time the injunctions were applied for, the only proceedings on foot in relation to the children were in the IL&CFPC. That court did not have jurisdiction to grant injunctions in care proceedings, and accordingly the local authority had to obtain permission from the High Court under section 100 of the Children Act 1989 (CA 1989) to apply to it to exercise its inherent (that is non-statutory) jurisdiction for the protection of children.

47. The local authority made the application to Roderic Wood J without notice to the appellant. It placed before Roderic Wood J a "case summary" some three pages long which set out the history of the case and the reasons for the application. The judge read the case summary and heard submissions from counsel for the local authority. He gave permission for the inherent jurisdiction to be invoked, and made an order in relation to each of the children's carers (a) forbidding the appellant from using or threatening to use violence; towards them; (b) forbidding her from harassing, pestering or molesting them; (c) specifically forbidding her from making any false allegations concerning their care of the children or the welfare of the children when in their care to the police, the NSPCC, any public body or individual with authority to intervene to secure the welfare of the children; and (d) forbidding the appellant from entering, or attempting to enter or come within 100 metres of the accommodation in which or the persons with whom each child was living. The order also contained a power of arrest for a period of 12 months from the date of the order "or until further order within that period".

48. The order also directed that the local authority "shall file and serve by 5 April 2004 a statement setting out in evidence the matters referred to in the document "Case Summary 19 March 2004"". The local authority was also directed to serve on the appellant a copy of the case summary at the same time as it served the order, and was to serve a copy of the statement on the appellant by 5 April 2004.

49. Although the order contained a power of arrest, it did not give a return date on which the order was to be re-considered, nor was the order limited in time. To the contrary, it is expressed to last during the respect minorities of each of the children or until further order..

50. It is, however, right to say that on the face of the order is the following rubric in bold: -

'Important notice to (the appellant)

This order gives you instructions, which you must follow. You should read it carefully. If you do not understand anything in this order you should go to a solicitor, Legal Advice Centre or Citizens Advice Bureau. You have a right to ask the court to change or cancel the order but you must obey it unless the court does change it or cancel it.

You must obey the instructions contained in this order. If you do not, you will be guilty of contempt of court, and you may be sent to prison.'

51. The order made by Holman J on 10 September 2004 was likewise made without notice to the appellant. The judge was shown the 19 March 2004 case summary and an addendum dated 8 September. He was also shown a statement from a social worker dated 10 September 2004. Holman J also gave permission under CA 1989 section 100 for the inherent jurisdiction to be used.

52. Holman J's order identified a particular address (where L and M were living) which the appellant was not to enter or attempt to enter. She was also not to come within 100 meters of the address. The order was to last during the respective minorities of L and M. A power of arrest was attached, to last for 12 months from the date of the order or until further order within that period. There was a provision for service of the supporting documents at the same time as the service of the order itself on the appellant. A penal notice was attached.

53. In the case of Holman J's order, in addition to the rubric in bold type on the same in the same terms as that set out at paragraph 50 above, paragraph 7 of the order specifically directs that the appellant may apply to the court on 2 clear days notice to the local authority to vary or discharge the order.

54. In the skeleton argument filed on the appellant's behalf on 23 November 2004, counsel takes the following points in relation to the orders of Roderic Wood J and Holman J:

a. Notwithstanding the direction of Roderic Wood J. on 2.8.04, that Ms D's' appeal against the injunction of 19.3.04 be treated as an application to vary or discharge, and be dealt with together with the other appeals on 25.11.04, it appears that the Court of Appeal is seized of the matter. Though the writer has not seen the Notice of the hearing, one has apparently been fixed in the Court of Appeal on 17.12.04

b. It is the Mother's preliminary submission that in view of the nature of appeal against the injunction orders, the Court of Appeal is in fact the appropriate court, and that the hearing on 17.12.04 should proceed as listed.

c. She appeals against the injunctions on the following grounds:

d. No notice was given to her that the local authority would seek either of the injunctions. There was no justification for their ex parte basis: though made under the court's inherent jurisdiction rather than under the provisions of the FLA 1996, it is submitted that the court should have regard to the factors cited in FLA 1996 s45. The children were in care: there was no possibility of Mother causing significant harm or of the local authority being deterred or prevented from making its application, had the Mother been notified in the proper manner. The injunctions should have been sough on notice.

e. The court granted the injunctions and powers of arrest, for the whole period of the children's minorities, without reading or hearing any sworn evidence, rather on the basis of the local authority's case summaries.

f. The court failed to order any return date at which the Mother would have had the opportunity to see either to resist or modify the injunctions or to offer undertakings by way of compromise.

g. A direction was given by Roderic Wood J on 19.3.04 that the local authority must by 5.4.04 file and serve a statement of evidence, presumably sworn. No statement was in fact produced until that of Beverley Miller on 9.6.04; Ms Miller's statements of that date and of 10.9.04 (in support of the additional injunction granted by Holman J) are neither sworn nor make any declaration of truth.

h. In all it is submitted that Ms D's grounds for appeal against the injunctions concern fundamental issues of justice, including her rights to be notified of the application , to have the evidence against her produced in the proper form, and to be given an opportunity to be heard. Such issues are appropriate for the Court of Appeal, and should not be dealt with under the liberty to apply which was only granted within the second injunction dated 10.9.04.

55. Somewhat to my surprise, the skeleton argument does not take the point that the orders are defective because the court does not have jurisdiction to attach a power of arrest to an order made under the inherent jurisdiction. The jurisdiction to attach a power of arrest is a statutory power, which can only be exercised pursuant to an Act of Parliament.

56. Two decisions in this court make the point clear. They are Re G (Wardship) (Jurisdiction: Power of Arrest) (1983) 4 FLR 538, and Harrison and Another v Lewis; R v S [1988] 2 FLR 339. It follows, in my judgment, that the appellant has a manifestly arguable point, and that permission to appeal against both injunction order must be granted, even though the power of arrest granted under the order made by Roderic Wood J has expired..

57. The impermissibility of attaching powers of arrest to orders made under the inherent jurisdiction is conceded by the local authority in a written submission to the court. I shall deal with the consequences of that concession later in this judgment. I need, however, shortly to address the other grounds advanced by the appellant in the skeleton argument dated 23 November 2004.

58. As to both applications being made without notice to the appellant, I do not think that the local authority can be criticised for taking this course, nor can either Roderic Wood J or Holman J be criticised for acceding to it. From the local authority's perspective the appellant was behaving in an angry and volatile way. Threats had been made. The children needed to be protected. There was a degree of urgency. In relation to the application to Holman J there was evidence of an intended breach of Roderic Wood J's order. I therefore reject any criticism of the orders on the basis that they were obtained without notice to the appellant.

59. However, where orders are obtained without notice, it is of the utmost importance that those affected by them (1) are made aware of the evidence on which they have been obtained and (2) are given the opportunity to apply to vary them or set them aside at the earliest possible opportunity. In cases which are designed to hold the position until the rights and wrongs of it are fully argued out in court, the injunction should be expressed to last for a limited period and be given a return date – that is to say a date on which the court will reconsider the matter and decide whether or not the injunction is to continue. The respondent to the injunction should also always be told of his or her right to apply to the court to vary or discharge the injunction.

60. In the instant case, the rationale for the local authority's thinking appears to have been that the orders would be required on an indefinite basis, and that a return date was unnecessary. The proceedings relating to the children were in the IL&CFPC and the exercise of the inherent jurisdiction was "one off". It was, moreover, open to the appellant to apply to the High Court to vary or discharge the order.

61. In my judgment, it would have been preferable had there been a return date on the orders. The court could then have checked to ensure that everything was in order, and could have heard any objections raised by the appellant against the orders. However, the absence of return dates does not, in my judgment, give rise to an arguable ground of appeal on the facts of the instant case.

62. I also do not think that there is anything in the point that the orders were made without hearing sworn evidence. Orders which are made in children's cases and which involve child protection can properly be made by experienced judges without hearing sworn evidence. Roderic Wood J provided for the local authority to verify its case summary in a statement to be filed by 5 April 2004: Holman J had both case summaries and a statement from a local authority witness.

63. However, what is inexcusable is the local authority's failure to file the social worker's statement pursuant to Roderic Wood J's order until 9 June 2004. A person who is the subject of orders such as those made in the instant case is entitled to know the evidential basis upon which the orders have been made. The local authority had invoked the jurisdiction, and it is unacceptable that it did not then obey the directions given by the court for the service of its evidence.

64. The local authority makes the point that the mother was legally represented during this period, and that at no stage was any application made to vary or discharge either injunction. That appears to be the case. It does not, however, excuse the local authority from its obligations to follow good practice and obey court orders.


65. On 14 April 2005, I was sitting alone, hearing applications for permission to appeal. I had no jurisdiction to hear any substantive appeal, if I decided that permission should be granted. As it happens, I have come to the conclusion that permission to appeal should be granted in relation to the powers of arrest contained in the orders of Roderic Wood J and Holman J. The question is: how do I proceed from here?

66. In the context of the appeals from the IL&CFPC, Roderic Wood J had directed on 2 August 2004 that the appellant's appeals to this court against the injunction made by him on 19 March 2004 be treated as an application to vary or discharge the injunction and should be heard together with the other appeals by Ryder J on 25 November 2004. Whatever the good sense behind that order, the appellant was entitled to resist it, and Ryder J was right not to address what he described as the "jurisdictional issues" relating to the injunctions. What Ryder J said in relation to the injunctions themselves, however, was as follows: -

28. As to the inter partes hearing of the issues on the injunctions. MD continues to say to this court that she will attempt to see her children with their carers when she chooses to do so. After some discussion she was prepared to contemplate an amendment to both of the orders so that they read in preamble that MD "shall not…other than in accordance with her contact agreement with the local authority…". However, I have regrettably come to the conclusion that in light of her expressed view and the chronology and nature of her previous behaviour the orders are both proportionate and necessary so as to protect the rights of others i.e. that she will not abide by an agreement in any event. There is ample evidence available to support the orders, for convenience the evidence is summarised in a Case Summary of the local authority dated the 19th March 2004 that can be found in the core bundle at A411.

29. I do not propose in this Judgment to address the jurisdictional issues relating to the orders that are already in place. In response to my suggestion that the orders could in the alternative be re-crafted as an exercise of jurisdiction under the Supreme Court Act 1989 or the Family Law Act 1996, MD declines to address this court preferring to make her best points to the Court of Appeal. Subject to the variations asked of me by the local authority I shall leave the orders in place pending her appeal to the Court of Appeal or if not revoked until their expiration in accordance with the decisions previously made by Roderic Wood and Holman JJ. I have no doubt that the orders can be validly made in more than one jurisdiction and whether or not the without notice procedure was necessary or proportionate, MD has had the opportunity before me to address their merits and declined to take it.

30. Accordingly, I have not investigated the local authority's use of the without notice procedure and the other procedural irregularities alleged on MD' behalf by her counsel.

31. I has now been moved from the carers identified in the Roderic Wood J. order and paragraphs 8 to 10, inclusive, of that order can be and are discharged forthwith.

67. The need for continuing injunctions is, in my view, very much a matter for a judge at first instance, who has the opportunity to assess witnesses and take evidence. Ryder J, as the extract from his judgment cited above makes clear, took the view that continuing injunctions were necessary, and he continued the existing injunctions pending the appellant's appeal to this court.

68. I have come to the conclusion that at the hearing of the appellant's substantive appeal against the injunctive orders (I am only, of course, giving permission to appeal) the likely outcome in the light of the local authority's concessions is that the appeal will be allowed and the question of continuing injunctions, and the form which they should take, should be remitted to the High Court, with a direction from this court that any fresh or continuing orders should not – for as long as they are made under the inherent jurisdiction – contain powers of arrest.

69. In these circumstances, one course open to me is to fix a date for the hearing of the appeal. The appeal will then be heard and the consequences I have indicated are likely to follow. Since it will, however, be the High Court (in the person of Ryder J) which will be deciding the form of any continuing injunction (assuming he remains of the view that one is needed) it seems to me that both time and costs could be saved if, after giving permission to appeal against both the orders of Roderic Wood J and Holman J I make the following directions: -

1. The appeals against the order made by Roderic Wood J on 19 March 2004 and Holman J on 10 September 2004 are not to be listed for hearing for a period of not less than eight weeks from today.

2. Within 10 days from receipt of this judgment the local authority must issue an application returnable before Ryder J on notice to the appellant setting out the terms on which it seeks either (1) the continuation of the injunctions made by Roderic Wood J on 19 March 2004 and Holman J on 10 September 2004 or (2) the discharge of those injunctions and their replacement by a fresh injunction or injunctions.

3. The application referred to in paragraph 2 must be accompanied by a short statement of the local authority's case for the relief it seeks, such statement to be verified on oath.

4. Any statement, which the appellant wishes to file in opposition to the form of relief sought by the local pursuant to paragraph 3 above, must be filed by the appellant within 14 days of receipt of the local authority's application.

5. The local authority's application (and any cross application by the appellant in relation to the relief sought by the local authority) will be listed before Ryder J on a date to be fixed with a time estimate of one hour or otherwise as he may direct. That date must not, if possible, be more than six weeks from today.

6. Subject to any representations to be made in writing to the Court of Appeal after the hearing before Ryder J referred to in paragraph 5 of this order, the appeals shall be listed for disposal with a time estimate of 30 minutes before a two judge court (to include Wall LJ in its constitution) as soon as practicable after the hearing before Ryder J.

7. In the event that the appellant seeks permission to appeal any order made by Ryder J at the hearing identified in paragraph 5 that application shall in the first instance be referred to Wall LJ on the papers.

70. The purpose of these orders is to enable the injunction question to be finally settled by Ryder J with a reference back to this court only if it is strictly necessary. On this basis, permission is given to the appellant to appeal the order of Roderic Wood J on 19 March 2004 and Holman J on 10 September 2004.

Order: Application for permission to appeal refused, save those relating to two injunction matters. Regarding matters dealt with by Roderic Wood J and Holman J on 10 September 2004. Permission to appeal granted subject to conditions set out in paragraph 1-7 at paragraph 67. Reporting restrictions granted.

(Order does not form part of approved judgment)