England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2001] EWCA Civ 1920

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		Neutral Citation Number: [2001] EWCA Civ 1920
		B1/01/1667

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

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

B e f o r e :

LORD JUSTICE THORPE
____________________

	IN THE MATTER OF
	S (A CHILD)

____________________

(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

The Applicants/Parents appeared in person.
The Respondent did not attend and was not represented
____________________

HTML VERSION OF JUDGMENT
____________________

LORD JUSTICE THORPE: This is a renewed application for permission, following a provisional refusal on paper of 5 November. The application challenges the judgment of Her Honour Judge Ludlow sitting in the Chelmsford County Court on 22 June 2001.

The proceedings concern a little girl "G", born on 28 June 1996, prematurely, as a result of which she spent the first six months of her life in hospital. The next 12 months were spent in foster care. She then had 17 months with her parents. That arrangement broke down in circumstances that have been fully investigated which resulted in G moving into foster care.

There have been extensive proceedings in the Chelmsford County Court resulting in major hearings before Judge Groves as well as Judge Ludlow. The culmination of these proceedings was the hearing in June when there was an application to discharge the care order in respect of G and an application by the local authority to free. Tragically for G's parents, the application to discharge the care order by the mother (Mrs S) was dismissed and the local authority were granted their freeing order. The application of both parents for contact was dismissed, although no order was made on the local authority's application to terminate contact. Mrs S has handed in a photograph of herself and her daughter at their last meeting on 17 July 2001.

The root problem in the case has been Mr S' previous conviction for sexual offences, which only came to light at what was a relatively late stage in the development of the relationship between Mr and Mrs S. It must have been a great shock to Mrs S. She herself has had a previous family in which she gave birth to two children, the elder of whom is very severely handicapped. Mrs S struggled with him. Her younger child, M, has had her problems but has emerged triumphant and that, no doubt, is in no small measure due to the devotion which she received from her mother.

For Mrs S to have to cope in this second venture into family life with the discovery that her present husband has a record that impinges critically on their capacity to provide for any child born to Mrs S, is a tragic blow for her. She seems to have faced it with complete commitment to Mr S and great courage.

In the end, however, judges have to take decisions as to the future of children. Those decisions are founded on welfare as the paramount consideration. Putting children first can result in unfairness and even injustice to parents. This case was not a case where the evidence was all one way. There were some extremely positive considerations going for Mrs S. There were, within the range of experts advising the court, some who were firmly supportive of Mrs S. The judges at various points had to make choices. They had to balance the pros and cons and decide in the end which of the conflicting expert evidence was to predominate. It is simply one of the tragedies of the case that in the end those who counselled caution prevailed over those who counselled for the reunion of the family.

This application comes to the court late. The order was made nearly six months ago and G's life will have moved on. That is no fault of Mrs S, who has tried to initiate the appeal process as a litigant in person. The delay between her first efforts of the 12 July and receipt of the papers in the Civil Appeals office on 12 October is no fault of hers. It seems to be the result of confusion within the court service so none of that runs against Mrs S herself. But, the consequence for G cannot be ignored.

Mr S has explained how he lost his legal aid simply because Government reforms meant that his non-specialist solicitors had to withdraw from the case only two weeks before the trial. That again seems an unfairness but one that cannot enter the scales against the paramount needs and demands of G.

In weighing this application for permission, I would like to record the considerable assistance that the court has received from Miss Temple-Bone who has in the past acted for Mr S. She, with a high sense of responsibility, has taken considerable time and trouble to prepare what is essentially a resumé of what she would say were she advocating this application. She has also prepared a full chronology. I would record the court's gratitude to her for all those efforts.

But, in the end, as I have sought to explain to Mr and Mrs S, my only function is to act as gate-keeper, to admit to appeal only that tiny percentage of cases which merit admission, almost always on the basis that the judge in the court of trial was arguably completely wrong. That is a very high test to satisfy. Judge Ludlow obviously brought great care to the case. She delivered a detailed, conscientious, reasoned judgment that extends to almost 60 pages.

When considering the case on paper, it is impossible to say that the judge erred in the preferences which she made and in the decisions that she reached. Mrs S has said that she has done nothing wrong and that the loss of her child is therefore, for her, not just a tragedy but a grave injustice. I have assured her that I recognise, as indeed anyone would recognise, that she has done nothing wrong and that the loss of her daughter is both a tragedy and in many senses an injustice to her. In the end, as I have tried to explain, the welfare and needs of the children prevail over justice to adults. Although I have the greatest sympathy for Mrs S, although I would simply on a human basis help her if I could, the reality is that there is nothing I can do in my position and with my function other than to confirm the provisional refusal which I gave on 5 November.

Order: Permission refused.