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S (A Child) [2013] EWCA Civ 1089

Application by father for permission for a second appeal in care and placement proceedings. Application and stay of proceedings granted.

This matter first came before a district judge who, having heard evidence over several days, granted a residence order to F.  All parties at the hearing were represented. The local authority appealed that decision and the matter came before a circuit judge who dealt with the matter in one day without hearing evidence. 

Father was unrepresented at that hearing as he did not qualify for non means tested legal aid. F's solicitors had requested an adjournment of the appeal hearing to allow for further discussions with the Legal Aid Agency and because trial counsel, who would have acted pro bono, was not available on that date. The judge made it clear that any application would need to be made to the court. F attended in person at court and did not ask for an adjournment.

Black LJ granted permission to appeal on the basis of four main points. The first centred on the question of fairness in the appeal before the circuit judge. Although originally and successfully represented on public funding at the first hearing, F became an involuntary part of the local authority's appeal and had to respond to it without representation when the consequence was the permanent severance of A from his father. The second point was whether the circuit judge had paid sufficient regard to the significant advantage the district judge had in hearing the father's evidence. The third point was whether the circuit judge was entitled to substitute her own decision to make placement orders having heard no evidence or whether the matter should have been remitted back. Finally the Court considered whether the risk involved by the father caring for A was sufficient for it to be proportionate to make the care and placement orders.

Permission to appeal granted and appeal listed for one day before three Lord Justices.

Summary by Georgina Clark, barrister, Field Court Chambers

Case No: B4/2013/1271
Neutral Citation Number: [2013] EWCA Civ 1089


Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Tuesday, 30th  July 2013


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(DAR Transcript of WordWave International Limited
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Ms Naomi Hanmer (instructed by David & Snape Solicitors) appeared on behalf of the Applicant father.
The Respondents did not appear and were not represented.
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(As Approved by the Court)
Crown Copyright©

1. This is a father's application for permission to appeal.  If permission is given, this would be a second appeal in care and placement proceedings with regard to the father's son, A, who was born on 20 January 2012, so is just over one year old.

2. The first decision in relation to A was made by District Judge Regan on 5 April 2013, granting a residence order to the father with a supervision order to the local authority.  At that hearing, the father was represented by counsel, who again represents him pro bono today.  The hearing on that occasion lasted for four days; the father was in the witness box for two of those four days.

3. The second order was made by Her Honour Judge Parry.  She allowed the local authority's appeal from District Judge Regan's order and instead granted care and placement orders.  The hearing in front of Judge Parry concluded in the day and as far as I understand it, no evidence was heard.

4. The local authority had leading and junior counsel; the guardian, who supported the local authority, was represented as well.  However, the father was in person.  Non means tested non-merits legal aid is available for care and placement proceedings at first instance but it is not available for appeals, and the father was earning just over the means threshold.  The lawyers who would have represented him pro bono were unavailable on that day for different reasons. 

5. I am told there had been communication with the court prior to the appeal about the question of the father's representation.  The father's solicitor asked for the matter to be adjourned because there were discussions with the legal aid agency and at that stage, I think he was hopeful that legal aid would in due course be granted, and because trial counsel was unavailable on the appeal date, he was fearful that there would not be time to instruct someone else to represent the father on the appeal.  The judge at that stage made it clear that any application for an adjournment would have to be made at court.

6. As it turned out, there was no legal aid for the father and the father's solicitor wrote again to the court, saying that the father would be a litigant-in-person, and explaining that he, the solicitor, was not able to deal with the case pro bono on the day in question because he would be engaged in another case.

7. The father attended himself; I am told that he did not ask for an adjournment.  He filed a skeleton argument, but it was eight paragraphs only in length.  That, therefore, is the procedural setting for the appeal. 

8. I need to say just a little about the substance of the case to explain the decision that I have taken, which is to grant permission for the father's appeal to this court. 

9. A's mother is not able to look after him; she has her problems.  She tried to look after him in a mother and baby unit but that came to an end in April 2012 and A has been in foster care since then.  The mother accepts the district judge's decision that care by her is not an option and similarly, nor is care by her parents.  So, the father is the only option within the family.  He has not cared for A at all so far.  He has only had a relationship with him on supervised contact visits.

10. The district judge gave a very long reserved judgment.  I do not intend to go through all that he found.  There is no doubt that he found a significant number of problems about the father's proposal that he should care for A.  The issues that the district judge had to consider included the father's untruthfulness; his recent relationships with three young vulnerable women, including the mother, and his announcement that he would be married within the year, even though there was no one in the wings at the moment; his much less than perfect performance in contact; the issue of how contact with the maternal family would be regulated if the father was looking after A; his shortcomings in presenting a formulated plan to the court for how he would manage with A, and so on.  Ultimately, the district judge concluded that the detrimental aspects of the father did not exclude him from parenting his son.

11. He found that the father was not "useless" in terms of his parenting ability, and that he had demonstrated "many signs of capable parenting", even if he had not proved himself as a parent by his performance in contact visits.  He had not demonstrated the same level of emotional attachment to A as the mother had, but he had demonstrated "at least a minimal level", and on occasions, better than that.

12. The district judge appreciated that the professional advice from the local authority and the guardian was that care by the father was not an option, but he explained that he gave greater weight than they did to the father's positive qualities and the lack of the sort of problems, such as drink and drugs, that so often feature in care cases. 

13. The judge did not consider that the district judge's assessment of the case was sustainable.  She said there were far too many question marks over the future care that the father would provide.  She described the district judge's decision as "a leap into the dark, with fingers and toes crossed", and she said that the district judge was distracted by the father's impressive qualities and failed to give any real consideration to the child's needs.

14. A number of detailed criticisms are made by way of proposed grounds of appeal in relation to the circuit judge's approach to the district judge's decision.  I am not going to go through those here; they speak for themselves.  But as I am proposing, as I have said, to give permission to appeal, and as I am conscious that in so doing I am differing from the decision that Lady Justice Arden took on the papers in the case, I do propose to outline very briefly the main other concerns that I have about the decision-making process in the court below.

15. This is a second appeal and accordingly, the Court of Appeal will not give permission unless it considers that the appeal would raise an important point of principle or practice, or there is some other compelling reason for the Court of Appeal to hear it.  I consider that in this case, that test is satisfied.  I would identify the following four main points, which need to be aired on appeal in addition to any of the detail of the circuit judge's approach to the district judge's decision.

16. I have explained to the father already in the course of this short hearing that in taking this course, I do not want to give him any false hope.  I am not expressing a view either way as to the merits of the case, only that the appeal has a real prospect of success.

17. The first of the main points is this: it is the question of the fairness of the process on appeal to the circuit judge.  This father was represented on public funding at first instance and succeeded.  He was then an involuntary part of the local authority's appeal and he had to respond to it; he had to do so without representation.  That seems to me to give rise to questions about fairness of process when the potential consequence -- the actual consequence as it turned out -- of the appeal was the permanent severance of the child from the father's family and the father, by means of care and placement orders.

18. I have mentioned to counsel that I thought an authority existed in the higher courts in which comment had been made on such a situation, probably not in a family case.  I have looked for quite a long time to find that and I cannot do so.  It may repay some research; on the other hand, it may be that I have misremembered the existence of such an authority.

19. The second main point which seems to me to need to be aired on appeal is this: whether the circuit judge paid sufficient attention to the district judge's greater advantage, in that he had heard evidence, and in particular, where this case was all about the father's capacity, he had heard evidence from the father orally for two days.  This particular argument needs to be explored, it seems to me, in the light of the Supreme Court's recent comments in the case of Re B, in which judgment was provided in June.

20. The third main point is this: whether, if the circuit judge was entitled to overturn the district judge's decision, she was entitled to substitute her own decision to remove the child from the father and make a placement order, particularly bearing in mind that she had heard no oral evidence at all, or whether she should have gone no further than, for example, returning the matter for a rehearing.

21. The fourth main issue is this: whether the risk that was involved in the father's caring for A was sufficient for it to be proportionate to make a care and placement order in relation to A, particularly when the father's care was as yet untested.

22. I have discussed in the course of argument with counsel a point which has to me the feel of a pleading point; that is to say that the local authority had to assert harm or likely harm that would occur in the father's care as part of the threshold, if they were going to assert it at all.  That may not be an entirely accurate statement of counsel's argument; it seems to me that what she is wanting to argue is that the possibility that the father may present a risk of significant harm came at a very late stage in the proceedings and that point was not established by the evidence in front of the district judge. If that is what she is seeking to argue, that is not really a pleading point.  It will probably be covered in the rest of the examination of the case in any event.

23. The threshold does not of course have to be satisfied in relation to each of the parents and it is not uncommon for the threshold to be crossed on one basis and then the evidence heard on welfare issues to be much wider-ranging.  What matters is that the parent whose care is being considered has the opportunity to know what is asserted against him and to deal with it.

24. At first glance, the district judge's judgment seems to suggest that that was so.  No doubt, any points which go against that will be raised specifically but other than that, it seems to me likely that the question of significant harm will be subsumed under the argument about whether the risk in this case was sufficient to make it proportionate to make a care and placement order.

25. So those are the matters that seem to me, really, to arise, and it is on that basis that I am giving permission.  I have discussed with counsel whether it would be sensible for a reformulation of the grounds to take place formally but perhaps, unless there is something in this judgment that she feels I have not covered, it would be sufficient for this judgment to be copied to the other parties in the case and made available for the judges in the case.  That will give everyone the opportunity to know what the arguments are that are to be addressed.

26. I have also provided to counsel (and others should be aware of this) a copy of a decision that I have handed down today in a case called P (A Child) [2013] EWCA Civ 963.  That decision may repay some consideration because it deals with the proof of matters which may go to the question of harm and the evaluation of whether that harm is sufficient to justify the removal of a child from the care of its family.

27. So I think it ought to have a day's listing.  It should be three judges, three Lords Justices, one with family experience.  So I give permission to appeal and those are the listing provisions.  I think there should be a stay and that ought to mean, I would have thought, that the contact is restored to what it was.  The matter should be expedited in the normal way of child cases, particularly as the child is 18 months old.

Order: Application granted