England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL ( CIVIL DIVISION )
ON APPEAL FROM THE LANCASTER COUNTY COURT
(HIS HONOUR JUDGE RAWKINS)
(LOWER COURT No: LA10C00054)

		Royal Courts of Justice Strand, London, WC2A 2LL
		28th October 2010

Lord Justice Wilson:

1. Today is the day fixed for the hearing of Ms H's appeal against an order made by HHJ Rawkins in the Lancaster County Court on 21 April 2010.
2. The judge struck out the mother's appeal against orders which had been made in the local family proceedings court on 3 February 2010 referable to a girl, M, who was born on 17 January 2009 and is thus one year old. Permission was granted to the mother to bring this appeal at a hearing without notice on 23 June 2010.
3. At the outset of today's hearing the mother has sought an adjournment of the appeal. Mr Hart, here to oppose the appeal, opposes the suggested adjournment. So in this judgment I seek to address only the initial question whether the appeal should be adjourned or should now go ahead for substantive despatch.
4. In granting permission on 23 June, Black LJ did not fix today's date as being the date of the hearing. It might have been possible for her to have appended to her order a direction that, in the interests if only of M, there should be maximum expedition in the listing of the appeal. She did not do so -- I make no criticism of her -- and so the appeal was only in due course listed to be heard today. The parties were informed by letters sent by the Civil Appeals Office on 9 August that the appeal would be heard today. The mother accepts that she knew from that date onwards that the appeal would be heard today. The local authority have made strenuous efforts to prepare documents for our use today. Numerous bundles have been filed. It is however highly unlikely that, were the appeal to proceed today or indeed whenever it was to proceed, there would be any need for any of the parties to consult many, if any, of the large number of documents filed. It suffices to say that the bundles of documents filed with the court by the local authority were served on the mother on 22 October.
5. The basis of the mother's application to adjourn is that she is here this afternoon, as she was before Black LJ, in person and that she would prefer, as one can understand, to be legally represented. Quite what the mother has done, and the urgency or otherwise with which she has done it, to prepare for the appeal and in particular to secure legal representation since 23 June, when she knew that an appeal would be heard, and since 9 August, when she knew that it would be heard today, is unclear. But she has made attempts to procure a revival of the public funding which provided her with legal representation at the hearing before the magistrates. Only very recently, perhaps in the last day or two, did she learn, by way, I think, of a dismissal of her appeal to an area committee against the rejection of application for public funding, that on a publicly funded basis she would not be represented today and will not be represented at any hearing which takes place later than today.
6. Faced with that problem, the mother has sought the advice of the admirable Personal Support Unit here in the Royal Courts of Justice and (whether today or on some earlier date this week or otherwise) the unit suggested to her that another possible route for the securing of legal representation for her appeal might be through the Bar Pro Bono unit. She has not had time to make any such approach prior to today. The purpose of the adjournment which she seeks is to enable her to approach the unit and, as she hopes, to procure their acceptance of her application that she be represented by a member of the Bar, through the unit, at the hearing of this appeal on a later date. Thus her application for an adjournment is one which one can well understand.
7. On the other hand Mr Hart, in opposing the application, points to the substantial drift which there has already been in the determination of the mother's challenge, or attempted challenge, to the care and placement orders made by the magistrates on 3 February. The mother was prompt in seeking to appeal against them to the circuit judge; as I have indicated, her appeal was struck out in April; she then issued a notice of appeal which was late but which, by grant of an extension, Black LJ was on 23 June prepared to overlook; and since that time more than four months have elapsed. At the centre of all this of course is the child. Her interests are not paramount in any determination by this court whether to grant an adjournment but, albeit not paramount, they are of very considerable importance.
8. M was a child who, for reasons to which at this stage it is unnecessary to refer, was taken from the hospital where she was born into short-term foster care. She has never lived with the mother. Thus it is that, in the light of her date of birth, 17 January 2009, she has been with short-term foster parents for 21 months. As long ago as February 2010 the magistrates resolved on the evidence before them that they were driven to approve the local authority's plan for M to be adopted. They made a placement order. The local authority have wished ever since that date to use the authority thereby given to them in order to place M but they have been disabled from so doing by the continuation of the legal proceedings, first before the county court and then before this court. M has thus remained in what was intended to be short-term foster care up until this date. Adoptive parents have been identified as suitable for M but, very properly in the light of the continuing proceedings, the local authority have, with whatever degree of reluctance, not placed M with them. There is some doubt about whether those adoptive parents are still available to receive M into their home or, even if available, whether the local authority would now consider them suitable to act as adoptive parents for M. Mr Hart tells us, although it is not accepted by the mother, that the identity of those adoptive parents is now known to the mother, which, sadly, now makes them unsuitable for her placement with them even if the placement order were to remain in place.
9. At all events the local authority have been disabled from placing M at all, whether with those adoptive parents or with other adoptive parents. Let us not forget M's age. She is now 21 months old. Throughout her life she has been living with foster parents from whom, to one home or another, she will in any event have to be removed. So she will have been bonding fast and hard with parents from whom she will have to be removed. If this appeal were to be adjourned, that process of bonding would continue; its depth would be increased; and the likely problems for M upon her ultimate removal from that home would be likely to be greater.
10. What would be the position if this court were to accede to the mother's application? She would approach the Bar Pro Bono Unit. It would of course take time to consider her application for free assistance. It would want to look, I have no doubt, not only at the bare fact of the circuit judge's strike-out order but at the underlying merits of the mother's case. That would require them to consult the magistrates' reasons for making care and placement orders and some of the documents upon which the magistrates relied in making those orders. My experience of the responses given by the unit to applications for free assistance leaves me to be in a state of considerable doubt as to when it would respond to any application by the mother and whether its ultimate response would be that it would represent her or, alternatively, that it would not do so.
11. I foresee the result of an adjournment to be a delay of at least two, if not three or more, months in obtaining the response of the unit and then, even if it was positive for the applicant, in the unit's becoming ready and able to conduct the appeal on the mother's behalf.
12. In the light of those uncertainties (and the only certainty is significant yet further delay), my conclusion is that we should refuse the mother's application for this hearing to be adjourned.

Lord Justice Rimer:

13. I agree. I would also refuse the application.

(Later, following argument)

Lord Justice Wilson:

14. We have decided that this appeal should be dismissed but we want to take time to express our reasons in writing and so our judgments will be reserved and will be sent through the post to the parties on a future occasion. There will be no need for a further attendance; there will be no further hearing in court; and we cannot imagine that there will be any relevant consequential orders.
15. The court will rise.

Order: Application for adjournment refused; Appeal dismissed