England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SWANSEA COUNTY COURT
(HIS HONOUR JUDGE WYN RICHARDS)

		Royal Courts of Justice Strand London WC2 Friday, 30th March 2001

1. LORD JUSTICE WARD: This is an application by the mother for permission to appeal the order of His Honour Judge Wyn Richards made on 5th December 2000. Miss Lawson QC, who appears for the mother on this application has referred to certain ironies in the case going back to the errors in the implementation of the original care plan. Another irony of the case where delay was the crucial element in the judge's thinking, is that it is now nearly four months since his order. It would be even longer before the full Court can hear this appeal. Following the judge's example indicated in the reasons, I propose to give permission for this appeal to be heard. I shall state why as shortly as possible.
2. The child concerned, S, was born on 6th July 1998. He is still under three but he is rapidly approaching what many have said to be the threshold beyond which it becomes more and more difficult to move him from a settled placement. He is in care because in a previous relationship mother was held by the Family Court, although not by the Criminal Court, to have seriously maltreated another child. So S was removed because of that. He was placed with Mr and Mrs L, originally short-term foster parents, but ultimately the local authority after much vacillation were putting them forward as proposed adopters. The difficulty is that Mr and Mrs L are 56 and 57 years of age and the guardian ad litem thought, and the judge eventually agreed, that they were too old for adoption to be in S's best interest and therefore he refused to make the freeing order. But having refused that, he did accede to the suggestion that there ought to be some psychiatric or psychological examination of where the boy's best interests lay, and he therefore permitted the papers to be referred for that report to be obtained. We know because of an application made on the papers to us that the report has now been prepared but months have now passed. When he came to deal with the mother's application for the discharge of the care order, she was anxious to support that application with the subsidiary application for an appropriate assessment of her and, if successful, also involving S to see to what extent S might safely be left in her care. There was also application for contact.
3. The judge dealt with the matter in this way. Firstly, he asked himself what powers he had, and he dealt with that at page 7 of the internal numbering of his judgment. The first point made is that it is wholly unclear from his analysis of his powers whether he was truly accepting that he had a clear and unfettered discretion to order the assessment or whether he was inclined to think that because there was a care order and because of it there was unfettered discretion in the local authority to decide what should or should not happen to the child, and he was in some way hamstrung in the exercise of his direction by what the local authority wanted to do. One has to read pages 48 of the judgment. I confess that I was not entirely clear what the judge's view of his powers were. That is Miss Lawson's first point. Permission should be granted for that to be clarified.
4. As to her second and third points that he paid too much attention to the local authority's view and that there is a human rights' point, I doubt that those would take the application much further, but she can renew them if she wishes when the matter comes before the full Court.
5. What has troubled me, and I believe my Lord, is that there is perhaps an inconsistency in an otherwise long and careful judgment. The judge begins by dealing with the mother's application to adjourn. The structure of the judgment is that he acknowledges the mother's initiation of these enquiries by her going to the Swansea Child and Adolescent Unit in 1999 determined to try and assist herself and her child. That leads to Mr Luger beginning his assessment. He records (and one sees this on pages 34 and 38 of his judgment) how the local authority responded to this initiative by the mother. On page 34 it is recorded that the social workers concerned were impressed by the positive changes identified by the assessment but their concern about delay and disruption and uncertainty were important. The conclusion at page 38 is again that although the mother's attitude is very different, the authority remained worried about delay. At page 39:

"'As well as uncertainty,' says the Local Authority, 'there will be further delay.'".

6. Mr Luger's assessment is summarised on pages 37 and 39 of the judgment. He regarded the prospects of success to be high. There was however no guaranteed timetable and there was no guarantee of ultimate success. The judge was clearly impressed by the guardian ad litem and accepted her views of the matter. They were that Mr and Mrs L were too old to be able fully to meet the child's needs. Therefore, the freeing of an order for them to adopt would be wrong. Moreover, her view was that the child should move on to new foster parents or new adoptive parents, and the judge accepted that. Consequently, he refused the freeing application, left the child with Mr and Mrs L for the time being, apparently for the local authority to take on board what had so impressed him, namely the guardian's opinion that the child should be moved.
7. What seems to me arguably to be the inconsistency in the judgment is that the consequences of his order in the freeing application casting doubt on the wisdom of the placement with Mr and Mrs L and the consequences of his order giving permission for further psychiatric assessments to be made, carry with them necessarily their own implications of delay and uncertainty. There would have to be delay before deciding with whom the child should be placed, if not Mr and Mrs L, and if there was to be that delay, then why should the mother not be allowed to make use of that delay in order to enable her to put herself forward as the ultimate carer of the child.
8. It seems to me on that basis there is another argument that can properly be advanced in this most unfortunate case. I shall give permission, if my Lord agrees, and the appeal can go forward. I will do my best to ensure that it is listed as soon as possible, but I give no promises in that regard.
9. LORD JUSTICE RIX: I agree.
(Permission allowed; legal aid assessment)