England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE TAUNTON COUNTY COURT
(HIS HONOUR JUDGE COTTERILL)

		Royal Courts of Justice Strand London WC2A 2LL Friday 23 November 2001

1. LORD JUSTICE THORPE: Mrs S has three children, L, J and D, aged respectively, 15, 12 and 6. Sadly she has suffered from a serious psychiatric illness for which she has from time to time received in-patient treatment under the terms of the Mental Health Act. It is under those circumstances that L and J have passed into the care of the local health authority and are currently placed with foster parents.
2. The future of D was before His Honour Judge Cotterill sitting in the Taunton County Court on 11 July 2001. The local authority sought a care order with a care plan for adoption. Their application was supported by Dr Arnon Bentovim, instructed by the local authority to advise, and also by the guardian ad litem.
3. The mother was represented on that day by Mr Tolson QC. His position was summarised by the judge at page 6 of his judgment in these words:

"The benefits of D remaining with [Miss L] are acknowledged by mother through her counsel, but on her behalf, Mr Tolson asks why this should not take the form of long-term care."

4. To make full sense of that citation I should say that D had arrived with Miss L in March 2000 and over the 15 months of her continuous care she had come to regard herself as a candidate for D's adoption.
5. What was the issue? This was not one of those cases where the judge had to choose between long term care and rehabilitation. The judge recorded at page 5:

"The sad, regrettable but inescapable fact is that D cannot be returned to mother."

6. Mr Tolson's only remaining field of manoeuvre was to attack the care plan and to say that a care plan demonstrating adoption was perhaps premature.
7. The judge dealt with the issue quite briefly. He said that he wholly agreed with the local authority and the guardian. He said that were D held in long-term foster care she would not be secure. She would remain subject to local authority reviews, she would be subject to local authority and maternal approval of overnight absences. She would always remain at risk of recurrent applications by the mother for either residence or contact. The judge said that it would be upsetting, destabilising and absolutely inimicable to D's interests and her needs:

"The only possible order that I could contemplate is a care order, wherein the plan is for adoption."

8. Mr Tolson who was one of the counsel who had appeared in the cases of W & B; Re W in this court, subsequently submitted to the judge that there should be some stars attached to the care plan, an option the judge did not find attractive. He suggested that the judge should recuse from any further decision-making on applications for adoption or freeing, but the judge declined to do so.
9. On 25 July 2001 Mr Tolson subsequently settled a skeleton argument in support of an application for permission to appeal the judge's order, an order which was simplicity itself. He simply said, "Care order to the local authority, contact at their discretion". Mr Tolson's skeleton defined the basic issues as:

"(1) Should the judge have made an interim or a final care order?

(2) Should the judge have approved the care plan for adoption?"

10. That first issue does not seem to have been presented to the judge on the day. The second issue was presented to the judge, but his decision on that point was strongly stated, and fully supported by the eminent expert, Dr Bentovim and by the guardian ad litem. It was hard to see how on issue (2) the mother could have the smallest prospects of success in this court.
11. Mr Tolson went on to present an argument that in a case where there was a secure relationship between the child and a foster carer, and where the foster carer was a candidate for adoption, the use of the statutory alternative of a freeing order was completely inappropriate. That written submission led me on 1 August to assume that the judge had made some sort of decision to the effect that freeing was appropriate for that child.
12. In addition to Mr Tolson's skeleton argument, I received a bundle of about 500 sheets, neither indexed nor paginated, I did not have a transcript of judgment, I only had a note. With hindsight, I should have required a properly indexed bundle and a transcript before making any decision on the application. But because it was 1 August and I was anxious to dispatch all the pending paper applications before departure, I dealt with it on such material as I had and directed an oral hearing, on notice, with appeal to follow if permission granted. For some reason, that oral hearing has waited four months to come on but, at least, in the interim we have a transcript of judgment.
13. Having read the transcript of the judgment, I see that the issue canvassed by Mr Tolson was certainly not an issue on which the judge had expressed any view at all. At page 8, all he said was:

"Mr Tolson has argued that this is not a case for the local authority to seek a freeing order rather than allowing Miss L to pursue an application for an adoption order. He may or may not be right about that; I express no view."

14. So seeing the issue in proper perspective today, I can see no possible basis for criticism of the order made by the judge or of his reasoning. The application for permission, when properly understood, seems to me plainly hopeless. I only apologise to the local authority who have been put to the trouble and expense of coming to this court to defend a position which seems hardly to need defending.
15. I would dismiss this application.
16. MR JUSTICE HARRISON: I agree.
Order: Application refused. Public Funding Assessment.