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S (A Child) [2005] EWCA Civ 735

Procedure to be followed when determining cross-applications in care proceedings.

Re S (A Child) [2005] EWCA Civ 735

Court of Appeal: Thorpe and Maurice Kay LJJ (19 May 2005)

Procedure to be followed when determining cross-applications in care proceedings.

This case concerned a child, born in March 2001, who was subject to a care order and was placed in foster care in early 2004. The child's mother applied (1) to discharge the care order, and (2) for an increase in contact. However, the local authority intended to move the child to adoption under the terms of their care plan and, in July 2004, applied for a freeing order. Also, the child's maternal step-grandmother applied for a residence order.

These cross-applications were heard in March 2005; the judge, on learning that the local authority had identified potential adopters, 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 the Form F to the judge and to the guardian. The judge then asked the local authority to produce an anonymised version of the Form F, containing facts which he considered should be disclosed to the mother. The local authority tried to dissuade the judge from that course, on the simple ground that if the information were released to the mother and to the maternal step-grandmother, an immediate consequence would be the loss of the prospective adoptive placement. The judge 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; and he then ruled that the mother's entitlement to all relevant information prevailed.

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 that even the anonymised summary which the judge had composed would destroy the prospective couple's readiness to adopt if disclosed to the mother. The judge conducted his discretionary appraisal again but reached the same conclusion.

On appeal, counsel for the local authority contended that the judge had clearly fallen into procedural error, as indicated by the case of Re M (A Child) [2004] EWCA Civ 1874 which established that, where a judge had 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 was 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. Further, counsel submitted that the judge had fallen into fundamental error in the exercise of the balance which led him to the conclusion that the anonymised Form F must be disclosed to the mother.

Held, allowing the appeal, that the judge had 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 had failed, the application for a residence order would fall with it; only then did it become necessary for the judge to consider the freeing order application.

As to the disclosure of the anonymised Form F, the court considered, applying the principles in Re K (Adoption: Disclosure of Information) [1997] 2 FLR 74, that there might be circumstances in which the importance of disclosure outweighed any considerations of child welfare; in this case, however, the judge had simply over-estimated his obligation to do what he saw as fairness to the natural family.

Read the full text of the judgment here