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W-M (Children) [2009] EWCA Civ 1105

Application for permission to appeal, with appeal to follow, final care orders. Application and appeal granted and matter remitted to the county court.

The applicants were seeking return of their children but, in the alternative, that the three children be placed for adoption together: the local authority's care plan envisaged separate placement. In this hearing, the parents argued on the narrow ground that the trial judge did not have sufficient evidence to approve the plans and had not sufficiently considered the relevant factors.

The local authority and the guardian consented to the application, agreeing that the best way forward was to remit the matter back to the county court. Coleridge J therefore allowed the limited appeal, set aside the care orders and made interim care orders in their place.


Case No: B4/2009/1775

Neutral Citation Number: [2009] EWCA Civ 1105
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 8th October 2009


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(DAR Transcript of
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Mr M Jenkins (instructed by Natalie Sandercock) appeared on behalf of the Appellant Local Authority.

Mr M Allan appeared on behalf of the Guardian.

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Judgment (As Approved by the Court)
Crown Copyright©
Mr Justice Coleridge:
1. These are applications for permission to appeal, and, if permission is granted, appeal against the order of HHJ Eleri Rees made on 10 July this year at the Newport County Court.  The three children concerned are A, born on 10 April 1999, so she is 10; B, born on 30 April 2002, so she is seven; and C, born on 24 August 2005, so she is four.

2. The orders, in respect of which there is an appeal, are final care orders in relation to all three children.

3. The orders were predicated upon the basis of care plans put forward by the local authority, the Torfaen County Borough Council, that the children should all be placed separately, A being placed in long-term foster care and the younger two being placed for adoption outside the family and separately.

4. The application for placement orders following upon the hearing has not yet been heard and awaits the outcome of this hearing, it being contemplated that it will take place shortly following this hearing.

5. The application for permission is made by the mother and the father.  The mother is the mother of all three children; the father is the natural father of only the younger two B and C.  He is not the natural father of A, although she does not know that.  It seems that the father has certainly played a full role in her life as a stepfather.  The respondents to the application are the local authority and the guardian of the three children.

6. This matter has already been considered on paper by Wall LJ, who considered there were points that needed to be considered at an oral hearing, and so this has been listed for an oral hearing for permission to appeal with appeal to follow if the permission is granted.

7. The whole application is not of as wide an ambit as it might sometimes be. It is not against the whole of the learned judge’s judgment and approach.  The case before the learned judge had been argued on the basis that the parents themselves sought the return of the children and, absent that, a placement of all three children together.  By the learned judge’s judgment she, after a very full and careful evaluation of the facts and the history and the evidence both lay and expert, excluded the parents as potential long-term carers. Thus far, and, if I may so, given the evidence and the judgment, unsurprisingly, there is no criticism of the judge’s judgment.  However, the criticism of the judge is for her approval of the care plans which envisaged splitting all three children up and placing two for adoption separately from each other.  Put simply, the applicants say the judge simply did not have the necessary evidential material to approve the plans as they were proposed at that stage.  Further, they say she did not give proper consideration either at all or in her judgment to all the factors, statutory and otherwise, necessary before approving a care plan which envisaged adoption.

8. The full grounds are, if I may say so, set out succinctly in the written grounds of appeal filed on behalf of the father, to be found at 66 in the main bundle. The essence of the grounds is as I have summarised above.

9. As is apparent from the skeleton arguments filed by each of the two respondents, the local authority and the guardian, they are not opposing the application for permission or the appeal, prosecuted as it is on this limited basis.  They both, whilst accepting the careful factual analysis by the learned judge, also accept that she was not in a position in the end to consider fully the various permutations of placement.  They both agree that the simplest and fairest way to proceed from here would be for the matter to be remitted to the county court and for the judge to complete the consideration on the second or welfare stage of the case after the submission of such further evidence and amended care plans as she directs to be filed prior to that.

10. The guardian is especially keen for this approach to be followed because she accepts the criticism of the court below that she had not properly had time to inform herself about all the pros and cons of each potential placement, and she does not feel she was in a position properly to make informed recommendations to the court.  She would like, therefore, time to complete her investigations and her considerations with a view to advising the court further.

11. With that brief introduction it is only necessary to say that I agree that there are shortcomings in the second part of the judge’s approach to this case.  The first part is, I consider, completely unimpeachable, carefully and fully considered and argued.  But there are features in relation to the second stage which look as if she might have been not fully equipped to make the decisions which she made.

12. Accordingly, I take the view that the course now proposed by the appellants, and accepted and consented to by both the respondents, is indeed the fairest and most sensible way of proceeding from here.  I would therefore grant permission to appeal in respect of both appellants; but, on this limited basis that it is only in relation to the final disposal and care plans outside the care of the appellants, I would for that purpose set aside the care orders made in respect of all three children and replace them with interim care orders, merely to ensure that the court has the necessary jurisdictional basis for completing its task.  The application for placement will be adjourned to the same judge and dealt with as she may direct, and apart from that the matter will be remitted to the Newport County Court to the trial judge to consider such further applications for directions as the parties may wish to consider.

13. With that explanation I would give permission and allow the appeal in that limited way.

Lord Justice Thorpe: 
14. I agree.

Order:  Application granted; case remitted to County Court