AlphabiolabsIQ Legal TrainingBerkeley Lifford Hall Accountancy ServicesHousing Law Week

Home > Judgments > 2008 archive

P (A Child) [2008] EWCA Civ 1607

Application, by mother, for permission to appeal refusal for leave to apply to revoke a placement order on the grounds of a change in circumstances where the child suffered severe medical problems. Application refused.

The child had been born in 2006 with severe medical conditions requiring skilled day to day care. She had been the subject of an interim care order as a result of which, after discharge from hospital, she was placed in foster care and had never been in the sole care of the mother. During the subsequent hearing for a care order, the mother was represented by the Official Solicitor as she was considered to lack capacity. The Official Solicitor conceded that as the s31 criteria had been reached, he could not oppose the care plan which was for adoption. This decision was the subject of a previous appeal.

In making the application to for leave to apply to revoke, the mother represented herself with the help of a litigation friend. The application focussed on the change of circumstances: the mother claiming that her living standards and abilities to provide for her daughter had improved. The trial judge found that that the changes were not sufficient to allow leave to apply. In this appeal, The President reviews the changes cited, such as attachment and living conditions, and the evidence before the judge. He notes with concern that there no up to date medical report brought before the judge regarding the child’s long term health and needs. However at this appeal an up to date report was provided and The President concludes that the report would have strengthened the judge’s conclusions and so the application was refused.


Case No: B4/2008/2100
Neutral Citation Number: [2008] EWCA Civ 1607
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 22nd October 2008


- - - - - - - - - - - - - - - - - - - - -


- - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -


Miss Rogers (instructed by the Children and Adults Legal Team, Nottingham City Council) appeared on behalf of the Respondent Local Authority

- - - - - - - - - - - - - - - - - - - - -

(As Approved by the Court)

Crown Copyright©

Sir Mark Potter:
1. This is the application of Miss P, a mother, for permission to appeal and a stay of execution in respect of the decisions of HHJ Mitchell in Nottingham County Court on 7 August 2008.  On that date the judge refused the mother’s application under section 24 of the Adoption and Children Act 2002 for leave to apply to revoke the placement order made in respect of her child, K, aged two years and five months, that order having been made by HHJ Butler QC on 29 August 2007.  The mother sought permission to appeal that decision on the day of the hearing but permission was refused. 

2. There is a considerable procedural history to this case, which can be summarised in this way:  K was born on 7 May 2006.  She was born prematurely and remained in hospital.  She had many serious medical conditions with which to contend and required skilled day-to-day care and management.  Care proceedings were instituted in relation to her in September 2006 and on 23 November 2006, pursuant to an interim care order, she was discharged from hospital into the care of foster parents with whom she has remained.  She has thus never been in the sole care of the mother. 

3. The judgment in the care proceedings was quite a short one, referring to the fact that assessments had been undertaken by the local authority of the mother herself and of various members of her family but none were deemed capable of caring for K, whose father did not play any part in the proceedings.  In the care proceedings the judge found the threshold criteria under section 31 of the Children Act 1989 was satisfied and concluded it would be in K’s best interests for a care order to be made in favour of the local authority.  The local authority’s care plan was for adoption, although given the likely difficulties in finding adoptive parents for a child with K’s disabilities, the local authority envisaged that she would for the time being remain with her present foster carers.  However, the local authority also issued proceedings under the Adoption and Children Act 2002 seeking a placement order under section 21, and the proceedings were consolidated with the care proceedings and heard together by the judge.

4. At that time the mother was represented before the judge in both the care and placement proceedings by the Official Solicitor, who did not oppose the making of the care order and accepted on the applicant’s behalf that she was not capable of giving consent to the making of a placement order in relation to K.  It was because of that element of absence of dispute as to the ultimate decision that the judgment was relatively short.  The order of the court recorded that the mother’s consent to the placement order was dispensed with under section 52(1)(a) of the 2002 Act, the court being satisfied that she was incapable of giving consent to the placement order.  The Official Solicitor’s statement in both sets of proceedings, dated 17 August 2007, stated that it was the mother’s position that she had shown a commitment to contact and that there was a close and loving bond between her and her daughter, and if she was unable to care for K she would like to have continuing direct contact with her.  The mother had commented on the position taken by the other parties and felt that the local authority had not given her a chance to acquire the skills necessary to provide care to her daughter.  The mother felt that she should have the right to a family life and that if K were to reside in her care then there would be no risk of significant harm to K.

5. Having considered all the evidence, however, the Official Solicitor, in the exercise of what he described as his duty to conduct the case on the applicant’s behalf and in her best interests, concluded that the threshold criteria under section 31 of the 1989 Act were satisfied, but he could not oppose a care order being made in relation to K; that the mother was not in a position to consent or refuse consent for a placement order; and that he could not oppose the local authority’s application for such an order.  The state of evidence as to the mother’s ability to care for K in the care proceedings, and upon which the judge plainly relied, included a report of 8 June 2007 from the local children’s resource centre, which expressed its inability to be sure that the mother would retain or understand information given to her at all times and concluded:

“What has been consistent in terms of working with [the mother] has been her negative attitude towards professionals especially Social Workers.  The derogatory remarks and verbal threats have become progressively worse and I feel this is an indication that working co-operatively with RP will potentially be very difficult.  I also have concerns as to how this will impact on K.”

6. The local authority’s core assessment report, dated 11 July 2007, which was a long document, reached a similar conclusion.  In the final recommendations it was stated:

“The opinion of all of the agencies involved with K’s care in a position to make an informed decision regarding [the mother’s] ability to parent [K] is clear.  Without a very high level of continuous support and supervision [the mother] does not have the skills to enable her to successfully parent [K].  [The mother] has consistently demonstrated by her behaviour that she does not wish to work in partnership with the agencies who will continue to be involved with [K’s] care throughout her childhood.  Therefore, we need to look for alternative permanent carers.  Maternal grandparents have put themselves forward to be assessed and this is in the process of being concluded.  However, the Local Authority have a number of concerns in respect of their own living conditions, [the mother’s] upbringing and the influence that [the mother] still has upon them, and how this would impact upon [K] if she were to be placed in their care. 

Although the Local Authority does not want to pre-empt the outcome of the initial sessions of the maternal grandparents, there are a number of concerns regarding their interaction and relationship with [the mother] and their own parenting skills.  The Local Authority at this time believe it is in [K’s] best interest to be placed for adoption and the matter will come before the Adoption Panel on the 19th July 2007.  The Local Authority will urgently review this if the outcome of the maternal grandparents’ assessment proves positive.”

That was not in fact the case and the assessments did not prove positive in respect of any member of the family. 

7. In the care proceedings the guardian reached the same conclusion, and in paragraphs 62 and 63 of her report she wrote that, while she acknowledged the high level of commitment shown by the mother to her daughter during the proceedings and was very clear that the mother loved K dearly, the sad fact was that the evidence led to the conclusion that K’s needs could not successfully be met by the mother or by any member of the family.  The guardian observed:

“[K] is a very young and especially vulnerable child who requires a high level of care in order to meet her potential.  It is my view that the documentation supports the view that the only realistic way in which the welfare needs of [K] can be met is by the making of a Care Order.  I therefore support the application by the Local Authority for a Care Order to be made.”

8. The judge’s decision gave rise to an application for leave to appeal to the Court of Appeal, at which the mother herself appeared with a McKenzie Friend, a Mr John Hemming, an MP with a close interest in the conduct of care proceedings who also appeared and spoke on her behalf to argue that:

(1) The appointment of the Official Solicitor in the case was unlawful, the mother having understood what the case was about, and in any event family members were available to represent the mother. 

(2) The expert who had been appointed notwithstanding her duties to the court had wrongly and unlawfully failed properly to address the question of the mother’s capacity and had also given the appearance of bias. 

(3)  The decision to make a placement order was plainly wrong and had been made in breach of the mother’s Article 6 right to a fair trial and should accordingly be quashed. 

(4)  The mother accepted that the process of reuniting her with K would be gradual.  However, she had the mental capacity to conduct the proceedings and should have been permitted to do so. 

9. The Court of Appeal heard the application on 16 January 2008 and delivered judgment on 30 January.  It held that the evidence in the care proceedings was overwhelmingly in favour of care and placement orders.  It was right for the Official Solicitor acting for the mother to concede that the threshold criteria under section 31 of the 1980 Act were satisfied and that the care order was in KP’s best interest.  He was equally right to accept the psychiatric advice that the mother was not in a position to give an informed consent to a placement order.  It was said that the judge was plainly right to make the care and placement orders, they being plainly in the interests of K.  It followed that the mother’s rights under ECHR Article 6 had not been breached and that the orders made were right and inevitable on the situation which had been before HHJ Butler. 

10. That decision was subsequently the subject of a petition for leave to appeal to the House of Lords, which petition was rejected, the House stating that no matter of law arose which required investigation; and that being so the judgment of the Court of Appeal, which is a very long one and from which I do not propose to read further, is as it were the last word on the fairness and propriety of the care proceedings and the adequacy of the evidence upon which the judge made her order.  Meanwhile on 29 October 2007 the mother had issued an application in person, not it may be noted by the Official Solicitor, for revocation of the placement order.  The mother’s position was that she was fit and had the requisite capacity to appear for herself with the help of a litigation friend.  She also asserted that circumstances had materially changed since August 2007 when HHJ Butler made the care and placement order.  Such change of circumstances is of course a necessary pre-condition to the court having jurisdiction to revoke a placement order on the application of a person other than a local authority.  Various directions were made on 5 December 2007 and 2 January 2008 to bring the matter on before HHJ Jenkins on 11 February 2008, both to rule on the question of the mother’s capacity on the basis of evidence from a psychologist, Dr Helen James, and to hear the application, including an application by Andrew Pullen, the brother of the mother, who has accompanied her on this application, to replace the Official Solicitor as the mother’s litigation friend, and any further directions which might appear to be appropriate in the light of the Court of Appeal decision.

11. That hearing in turn had to be adjourned and on 13 June 2008 HHJ Mitchell ordered that the application to discharge the placement order should be listed for directions/a disposal hearing on 7 August 2008.  On that day the issues which it had been anticipated might take time to resolve as to the capacity of the mother were in fact bypassed without a formal ruling, and the substantive issue of the application was dealt with on the basis which was recited in the ensuing order, which read as follows:

“On hearing the Applicant represented by the Official Solicitor and assisted by her McKenzie Friend Mr Andrew Pullen, Counsel for the Local Authority, Counsel for the Official Solicitor and Counsel for the Guardian

On the application of the Applicant and consideration of the case

And Upon the Court considering written documentation and photographs submitted by [the mother] in support of her application from the bundles of evidence filed. 

And upon the Court determining, and the parties agreeing, that the focus of this hearing was the Application by [the mother] for leave and that issues of [the mother’s] capacity were a satellite issue that did not require resolution for the purposes of determining the application for leave.”

Then the operative part of the court order followed, paragraph 1 of which was:

“The Application by [the mother], dated 29 October 2007 for leave to apply to revoke the Placement Order made by Her Honour Judge Butler QC on the 29th August 2007 be refused.”

12. The mother’s application is for permission to appeal that order on a number of grounds, to which I will turn in a moment.  The question of the mother’s capacity to act for herself in the proceedings rather than through the Official Solicitor as her litigation friend was a matter rightly to be considered by the judge because it has loomed large in these proceedings throughout.  It was the main complaint of the mother in her appeal to the Court of Appeal that in the proceedings leading up to the making of the care order she had been represented by the Official Solicitor, who had not fought her corner effectively, and it was the mother’s case advanced before the Court of Appeal and maintained before Judge Mitchell that she had and has the necessary capacity not only to conduct her own proceedings with the help of a litigation friend but, with appropriate assistance, also to parent K, her child.  In the event the judge came to the decision on the basis of the material available to him, and the agreement of the parties, that what was needed was a disposition of the application on the basis of the change of circumstances advanced rather than what the judge called in his judgment and was recited in the order “satellite litigation” as to the mother’s capacity to represent herself with help from a litigation friend.

13. There was before the judge a very clear and articulate position statement advanced by the mother, and it is apparent that she and Mr Andrew Pullen, as her litigation friend, were well able to conduct the proceedings before the judge.  Certainly they take no point on this application that there should have been representation by the Official Solicitor or by anybody else.  In that statement, having dealt at length with the history of the matter, the mother stated that on the day following the hearing of the evidence in the final hearing -- that is to say 29 August 2007 -- she moved into a flat located on Cranwell Road in the Strelley area of Nottingham where, she said:

“I currently live independently and live my life without any support whatsoever, I do all the usual things that anyone else does including managing my finances, affairs, grocery shopping, and attending appointments.  I make decisions that concern all aspects of my life.  I cannot understand why court proceedings would be vastly different as my objection to my daughter being adopted is obvious and I take personal offence at being told that I cannot understand the process.”

14. She said she had decided that she would for future hearings and appeals do them herself even though she knew that she might be nervous in court having to speak in front of everyone, and although it might be a disadvantage she felt it was the only way she could achieve justice.  She stated that she applied for a discharge hearing because the social services managed to get an ICO by saying that she could not copy with K’s complex health needs.  K was oxygen dependent at the time the original ICO was applied for and granted, but since being in foster care K no longer required oxygen and her health had improved. 

15. Before the judge the mother advanced a number of grounds which were indeed set out in writing, and she produced before the judge a written Change in Circumstances, upon which she relied.  I say in parenthesis I have some difficulty in reading these because of the quality of the photocopy, but they were as follows:

“1. [The mother] has been living independently and without any support since August 2006 in a council flat in the Strelley area of Nottingham, including managing finances and all day-to-day affairs”

Under each of these headings there were references to the core assessment reports or medical evidence which had been given in the course of the proceedings and which were, as I understand it, available to the judge who had bundles of documents with him at the hearing. 

“2. [The mother] is actively seeking employment and has a psychological report completed to help in this respect, a WAIS 3 test was undertaken. 

a. The test results indicate that her IQ has improved.”

16. Under paragraph 3 there is a head which appears to indicate that she has maintained contact satisfactorily.  I say that because I cannot read the writing entirely. 

“4. [The mother] has a more in-depth understanding of court proceedings & the process.

5. [The mother] is now always presentable & clean in terms of personal hygiene.

6. [The mother’s] home is also hygienic & clean in fact spotless. 
b. [The mother] is more than happy for her home to be assessed or checked.

7. [The mother] has an understanding of [K’s] health in detail and how [K’s] health affects her.

8. The relationship with George Rose from the local authority expressed concerns about them in various documents no longer exists, [the mother] no longer has any relationship with this man nor any other.

9. [The mother] has no pets which may pose any danger to [K] either directly or indirectly, such as a bite from a dog or ‘dog hair’, which would cause K breathing difficulties. 

10. [K] is now very aware of the mother being her mum due to [K’s] age, attachment has significantly improved because of [K’s] understanding of this.  

11. [The mother] has the full support of her family & has a support network in place, which includes professionals.”

17. I have already mentioned that there were references to various documents relied on in support of the points made.  The points upon which the mother relied which were picked up before the judge as being of particular importance were an assertion of her own established independence and ability to cope with the everyday incidents of life and the overall improvement in K’s health and knowledge of her mother. 

18. The position statements of the local authority and the Official Solicitor dated 20 and 27 December 2007 respectively were brief and neither were directed to the detailed issues which I have recounted.  That of the Official Solicitor was largely directed to the question of capacity, and that of the local authority listed the various assessments and reports leading up to the original care order, but the statement was of an interim nature directed towards what was to be done about hearing the appeal and the representation of the mother rather than dealing in terms with the change of circumstances advanced by the mother.  However, at the hearing a number of documents were produced in support of the mother’s claim and the judge had access to the relevant bundles of documents in the case.

19. The mother put her Changes of Circumstances under the various headings which I have mentioned and the judge, having considered the matter and received the submissions of the parties, in the event refused leave on the grounds that, in the overall context and history and the underlying factual basis of the care proceedings upon which basis the care order had been made and upheld in the Court of Appeal, such change in circumstances as had taken place in relation to the improvement in K’s health and the development of the mother’s relationship with her did not justify the grant of leave.  In his judgment the judge rightly adverted to the considerations to be applied on an application for leave under section 24(3), as considered in the case of Warwickshire County Council v M [2007] EWCA Civ 1084, and conducted a proper exercise in relation to her discretion in coming to her conclusion.

20. The judge considered the change of circumstances and the extent to which there had been a material change, bearing in mind the basis of the decision which was sought to be re-opened.  In this respect, of course, the statute does not provide, in terms, the quality or nature of the change which is required to obtain leave, but it is clear that one must have regard to the basis of and reasons for the earlier decision when deciding whether the nature and degree of the change of circumstance relied on is sufficient to justify re-opening the event on the basis of what has, on the face of it, been a final disposition.  Upon the change of circumstances and then materiality the judge said this:

“11. What are the changes in circumstance that the mother relies on?  She set these out in her submissions and they are set out in the written document headed, ‘List of changes in circumstance,’ that she has provided me with and which I read earlier into the court record.  Each and every one of those has been addressed by Miss Rogers in her response.  These, as she says, do not show a change in circumstance in any way from those that were presented to the court in August a year ago, save possibly in so far as there is a continuing improvement in K’s personal health, for which all parties will be grateful.  Secondly, because inevitably the relationship between child and mother and mother and child has continued to grow and develop as the child has become more aware of who her birth mother is, as a consequence of the ongoing contact that has occurred throughout.

12. Do those matters amount to a change in circumstance since the making of the order that would justify the granting of leave and, in so far as the proper interpretation of the legislation is concerned, are they matters that I should go on to deal with?”

21. The judge then proceeded to consider whether, to the extent that a material change was demonstrated, leave should in fact be granted, having regard both to the welfare of the child and the existence of any real chance or likelihood of success if leave were granted.  In that respect the judge said this:

“15. Therefore, what I have to weigh in the balance on the normal principles as it has been aptly described, ‘The welfare of the child and the prospect of success’.  The arguments put forward by Miss Rogers on behalf of the local authority, have the full support of the children’s guardian, who was the guardian within the care proceedings.  I do of course note, the child, as such, has no status as far as the application for leave is concerned.  Nevertheless, it is right that it is the view of the children’s guardian that those matters highlighted are not matters that do otherwise than argue against the exercise of discretion in favour of giving the mother leave. 

16. One of the important aspects of the Children Act is that of delay.  Delay is contrary to the welfare of the child.  It is set out clearly in Section 1 of the Children Act 1989.  Delay where adoption is concerned can also be highly prejudicial because of the fact that the older a child becomes, the more difficult it is, firstly, to place, and secondly, to ensure the necessary attachment and bond between the child and the adopters is cemented. 

17. At the conclusion of the care proceedings, [K] was 15 months old.  She is now some nine months older.  The fact of the matter is that with her particular needs there is a real need for her to be found a placement soon.  The numbers available to take care of her may well be limited…

18. That begs the question which I have to consider as to whether there has been a change in circumstances in the mother’s ability to provide for the welfare of the child.  All of the assertions that have been made by the mother are either matters that have already been dealt with as factual matters within the matrix examined by the Court of Appeal, or relate simply to a limited change in the relationship the child has with her, and vice versa, and in the child’s health needs.  Does the mother have capacity to address all of those matters and can I be satisfied that on the evidence that I have heard, that she may do so? 

19. That takes me, to some extent, back to the issue of capacity because what is clearly shown by the way in which the mother has presented herself before the court, and gone on to submit within this application, are matters relating to the basis on which she has contact; matters relating to medical and other issues; and makes it very clear to me that there is a very real blurring of her boundaries of understanding of the needs of her child.  There is a very real concern, therefore, as was found by Her Honour Judge Butler, that the mother’s ability to prioritise the needs of her child remain as they were found to be a year ago.

20. Therefore, it is the case, first, that I am not satisfied that there has been a change in the circumstances that would justify my granting her leave.  Secondly, that even if I had found the changes I have identified are sufficient, in the exercise of my discretion and weighing these matters in the balance as I am required to do, namely the prospect of success and the welfare of the child, there is, in my finding, no prospect of success were I to grant leave.  The welfare of the child thus becoming of paramount importance, the whole issue of delay is one that causes me grave concern.  Therefore, for those reasons the application, even if it had concluded there had been a change, would not have resulted in my granting leave.  For those reasons the application is refused.”

I observe in parenthesis that the reference by the judge to the welfare of the child becoming paramount was an error so far as an application of this kind is concerned -- while such welfare is a very important consideration it is not the paramount consideration.  This was a matter immediately picked up by counsel immediately following the passage of the judgment that I have just quoted, the judge acknowledging that he had given the wrong emphasis in that respect but it being clear that his decision remained the same.

22. A number of grounds of appeal have been advanced on this application, and emphasis has not unnaturally been given by the mother to a variety of respects in which the position has changed so far as various matters are concerned since the hearing of the care proceedings.  At this stage I will itemise them.  So far as the changes in circumstance are concerned, she underlines the question of her own health and relies upon the fact that the local authority have admitted that K’s health has improved significantly and expresses mystification, as it were, that at the same time as making their submissions to the judge the local authority claimed that a change in K’s health was not a change on which the judge should rely or concentrate; and in that respect it is important to emphasise that the thrust of the case when it was decided at the stage of the care proceedings was not simply the seriousness of K’s condition, which undoubtedly had improved since the time when an interim care order was first made over the period up to the making of the care order, and was indeed continuing to improve from that date.  The thrust of the concern was that while that health might have been improving it nonetheless gave rise to ongoing concerns about the necessity for anyone with the care of K to be capable of dealing with a wide variety of health difficulties from which K was likely to suffer for the foreseeable future, and in arguing the matter before the judge below this was an aspect which the local authority emphasised, so that the question of the improvement in K’s health was not in itself a matter definitive of the question of whether there should be a change of circumstance when the overall circumstance on which the local authority were relying was the apparent ability of the mother herself to deal with the questions which would arise and be necessary to be attended to over the years when caring for K.

23. The next matter which is relied on is the question of the mother’s accommodation and her independent living.  Again it was not in dispute before the judge below that the mother’s position in this respect had changed, but the question made by the local authority and presented to the judge on the application was the question whether that in itself gave rise to a situation which met the gravamen of the local authority’s concerns.  It is plain that the judge, who did not deal with this aspect in his judgment, did not consider it a material matter in the same way as those questions going to the health of K, and her relationship with her mother and the ability of the mother to cope with those health concerns.  There is also reference to the question of capacity, and various points are made about the adequate way in which the mother had represented herself in the Court of Appeal.  The assertion is made that she had sufficient capacity to conduct her own case.  That was the point on which the judge, in effect, himself relied in permitting her to deal with the matter and bypassing the possible concerns expressed by the Official Solicitor, and does not seem to me a matter of significance on this appeal.

24. The next change of circumstances to which the mother adverts under the heading “Childcare” is the question of her parenting skills and the assertion that those parenting skills have improved, and a complaint that the local authority chose to use old assessments to support their assertion that they had not improved or at any rate had not improved sufficiently significantly to affect the position.  Again the question is really one of degree, and there was a good deal of evidence before the judge in the form of the assessments and other reports to indicate that the real difficulty for the mother was less perhaps mechanical skills of parenting but the appreciation of the priorities of the child, the nuances of her condition and the ability to supply her on a long-term and full-time basis with the proper level of care.  She relied upon the question of household conditions, it having formerly been claimed apparently in the care proceedings that her home was unclean and unhygienic.  But it is not apparent that that was a matter on which the local authority were relying before the judge or to which he attached any significance.  The point was made of the change in relationship with Mr Rose.  Again it is not apparent that that was a matter which had assumed significance before the judge.

25. She relies upon the fact, as she states, that she has a support network in the form of her family but again that is a matter which was considered by the judge and it was inherent in the evidence which he had before him that those members of the family who were advanced as having a contribution to make in this respect had not been assessed as appropriate.  There is a heading also about concern about safety and no pets.  Again this was not apparently a matter to which great significance was attached before the judge.  The more significant heading, and one to which the judge plainly did advert, was the question of attachment, and the assertion that K was becoming aware who the mother was and was establishing a relationship with her, showing recognition and pleasure in her company.  The point is made that an attachment break at this point in her life would cause irreversible damage since as the mother says, “She now calls me mummy and is very attached to me.” 

26. This was, of course, a point which the judge had to consider and was a point taken into account, no doubt under the heading of “welfare of the child”.  The judge was himself concerned with issues of attachment in the sense that that was one of the matters which to him at any rate, in the exercise of his discretion and on the basis of the evidence before him, indicated a need for speed in relation to the placement for adoption rather than as a reason to withhold the making of such an order, and the possibility of entrusting the child to the mother in circumstances where the preponderance of evidence plainly accepted by him was that the mother was not capable of providing for the child’s long-term care and needs.  One of the points which has caused us a little concern on this appeal is the fact that with notice of the change of circumstances upon which the mother was relying and on the basis that the local authority itself was relying, and relying quite heavily, upon the inability of the mother to provide for the long term needs of K, there was not an up-to-date medical report provided before the judge to substantiate what was the thrust of the local authority’s submission, namely that the medical condition of the child while improving over the period would remain one in relation to which, essentially, the level of care to be provided by the mother would be inadequate.

27. However, the counsel for the local authority has drawn to our attention a recent medical report which, had it been in existence, should certainly have been before the judge.  It reviews K’s condition, taking a look into the future.  It sets out at some length the history of all the previous reports of doctors, a number of which were in any event before the judge and under the heading “Implications for the future” in two sections of the report, says this, page 5:

“1. Due to [K’s] extreme prematurity and her chronic lung disease she should never be placed in a smoking environment.  She is at high risk of developing problems with respiratory infections and even simple infections like colds could cause her significant problems.  She will have monthly RSV vaccinations to prevent her from developing bronchiolitis [sic] during the winter seasons. 

2. [K] has a number of professionals involved in her care and will have ongoing review by them. 

3. [K] had retinopathy of prematurity and required laser treatment.  I have no information as to her expected long-term vision. 

4. [K] was reported to have a hoarse voice and had had an MRI scan on her larynx.  She will be reviewed by Mr Marshall, Consultant ENT Surgeon. 

5. [K] had cardiac surgery as a neonate.  She may need cardiac follow up and Dr Thakker will be contacted for further advice.  [She] may need lifelong cardiac reviews intermittently throughout her child and adult life.  She may need to seek specialist advice with regard to this prior to any pregnancy in the future.”

28. Then on page 6 it is stated:

“Due to [K’s] prematurity and her very young age it is obviously difficult to predict future learning and development.  She had multiple problems at birth and remained on the neonatal unit for four months.  She is known to have had bilateral intraventricular haemorrhages.  Some reports suggest the birth mother may have some learning difficulties.  Assessment of her development will be ongoing.  When seen in April 2008 her development was progressing well.”

There is a reference to writing to a consultant paediatrician for further information.  Finally it states:

Parenting issues and the current placement. 

[K] continues under the care of many specialists and will have many outpatient appointments to attend.  She will need ongoing input from her carers.”

29. For my part I venture to think that, had that report been before the judge, as I think some report should have been on the question of medical condition, it would have confirmed rather than disturbed his long-term view as to the validity of the concerns of the local authority at the level of care which would be available to K if she were re-entrusted to the care of the mother.  In those circumstances, in my view there is nothing upon the face of the judgment, or in the submissions, or in the headings to which I have referred, which establishes a reason for this court to overrule the view of the judge and the exercise of his discretion.  It has been suggested that in various respects, largely the despatch with which he proceeded with the matter, the mother was placed at a disadvantage and that there was possible or actual breach of her Article 6 rights in relation to the trial of the matter, but on everything I have heard and seen, including the submissions of counsel for the local authority, I see no substance in those allegations, and in all the circumstances I would dismiss this application.

Lord Justice Wall: 

30. I agree.  Like my Lord I think it most unfortunate that the local authority did not put fresh evidence before the judge.  It would not have been difficult to have presented an updated medical report or social work report or investigation restating the local authority’s position that the mother was not able to care for KP full-time.  The opportunity could also have been taken, as my Lord has indicated, to update the court on KP’s health.  Had this been done, I think it likely, given the history of the case, that permission to appeal might well have been refused without the need to summon the local authority to the court as we have done this afternoon.  Furthermore I think it would have been easier for the mother to understand why it was that the local authority was taking the stance it did and why, in their view, KP could not return to her care.  I think we need to remember that we are dealing with adoption, which as we all know is one of the most emotive topics that there is both for parents and everybody else. 

31. All that said, however, I have come to the view, having considered the matter carefully, that the judge was entitled on the material available to him to reach the conclusion that he did, and like my Lord I would refuse permission to appeal.

Order: Application refused