England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PLYMOUTH COUNTY COURT
(HER HONOUR JUDGE SANDER)

		Royal Courts of Justice Strand London WC2 Thursday, 25th January 2001

1. LORD JUSTICE WARD: This is an application for permission to appeal the orders made by Her Honour Judge Sander on 1st November 2000 when she made care orders in respect of three children PW, twelve, MB, ten and JB, eight. The application does not concern PW, only MB and JB.
2. The threshold requirements were held to be satisfied, firstly, because of physical abuse by the father, Mr B; secondly, his sexual abuse of the children; and thirdly, some emotional abuse by both in respect of the mother she failed to protect. Permission is not sought and certainly not granted to challenge the findings that the threshold was crossed. The issue is whether there should have been a full care order or a series of interim care orders in respect of M and J to monitor -- that is the reality of it -- the implementation of a care plan which eventually contemplated the possibility of return of the children to mother provided she remain steadfast in her separation from the father, Mr B, and provided she was shown to be capable, after assessment, et cetera, of caring for the remaining two children.
3. Permission was refused on paper and I am bound to say that my initial reading of the papers led me to be in some agreement with the views of Thorpe LJ. However, Mr Levy QC directs my attention to page 21 of the judgment. The first point to be made is this: the judge proceeded upon a basis that the local authority "can be relied (upon) to ensure it (the care plan) be done and properly reviewed".
4. An affidavit was placed before me by the applicant's solicitor, Miss Stephens, calling in question whether proper steps had been taken to do what the judge envisaged should be done and would be done, and although there is a letter of 25th January from the Council Local Authority explaining their position, it may be that if fresh evidence were admitted -- and that is a matter for the appeal -- it may be that the basis upon which the judge proceeded can be shown to have been undermined by that inactivity.
5. Then Mr Levy makes these challenges to the logic of the judgment: Firstly, the judge proceeded upon a basis (see pages 21 and 22) "that the local authority needs to share responsibility", and Mr Levy points out, it seems to me accurately, that under an interim care order they had it. Secondly, her judgment appears to reason that the care order is necessary to give certainty to the children, when later she acknowledged that the outcome was neither known nor certain; indeed, there is no certainty in this case.
6. Her next reason was to avoid a long series of interim care orders. They could of course be dealt with administratively. Her judgment, on page 22, postulates that the children need to know the position and not to have further Court proceedings hanging over them. It is submitted that in their position they are hardly likely to know that those proceedings are pending and uncertainty inherent in the assessment.
7. Mr Levy attacks the logic of the judgment. He raises an arguable case and is given permission accordingly. He furthermore takes on the daunting but interesting challenge of submitting that the Children Act which in its current operation ends the Court's control on the making of a full care order, it is incompatible with the Human Rights Act. I say no more about that than that it sounds jolly good fun. I doubt that I will be doing it. I await the outcome with great interest, and whilst expressing no optimism about the outcome, I recognise that permission can be granted on the basis that it is a point of particular public importance. If Mr Levy does not try to take it now he will try it on some other occasion or someone else will take it up, and in the interest of certainty in this branch of the law the sooner the Court grapples with the problem head on the better.
8. I shall give permission on those grounds as well. This is a case which will need a three Lord/Lady Justice Court. There must be at least one family law Lord or Lady Justice or the President in it and one of our human rights experts, and it will take approximately a day. I think a further sensible direction would be to urge the local authority and the guardian ad litem to unite in their opposition to the appeal so that only one counsel is involved for both sides on that issue. It would be mainly a legal argument and I cannot see any conflict between them which would justify the expense of separate representation.
9. There is also an application for permission to appeal by the father, Mr B. He is not present because he says he is unwell. Without expressing any concluded view on his applications, I would point out that he will have the greatest difficulty in persuading the Court that the findings of fact are appealable, but in his absence I cannot shut him out. Therefore, I adjourn his application to be heard on notice to the local authority and to be heard with the mother's appeal.
(Permission to appeal allowed)