England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CROYDON COUNTY COURT
(HER HONOUR JUDGE ATKINS)

		Royal Courts of Justice Strand, London, WC2A 2LL
		30th July 2013

LORD JUSTICE McFARLANE:

1. This is an application for permission to appeal made by the grandmother of a young boy, J, born on [a date in] 2011, and therefore 21 months or so of age.
2. Care proceedings were issued by the London Borough of Sutton with respect to J in July 2012 following escalating concern as to his well-being in the care, primarily, of his mother, who was still only a 17-year-old person at that time and because of her relationship with the child's father, who was then 18.
3. The proceedings soon included the applicant, who put herself forward as a potential long-term carer for J. By the time the case came on for final hearing before HHJ Atkins on 31 May 2013, the issues as to J's future care were binary. On the one side, the family -- or at least the mother and the applicant -- were submitting that J's best interests would be served by remaining in the family and being placed with the applicant under a special guardianship order, with or without a supervision order. The only other choice open to the court was that put forward by the local authority, supported by the children's guardian, for J to be subject to a care order and a placement for adoption order, with a view to him moving forward to full adoption. In the event, the judge chose the latter course and the applicant now seeks permission to appeal against that determination.
4. The history, of course, is more complicated than the summary that I have described, but it is not necessary in the course of this short judgement to go into detail about that, because I have formed the clear view that this is a case in which permission to appeal should be granted. I formed that view partly on the basis of some of the grounds of appeal that are put forward in a helpful document, which is supported by a full skeleton argument prepared by counsel, Miss Jacqui Gilliatt, who has acted for the applicant, certainly at certain key stages of this process, under direct access arrangements. Miss Gilliatt is not able to be at court this morning, but the applicant is here and is comfortable with addressing the court as she has done in the brief submissions that have been made.
5. More particularly, I consider that permission to appeal should be granted for additional reasons and it will help all of the parties, and indeed the court that eventually hears this matter, if I spell those out in short terms.
6. This application falls to be considered in the immediate aftermath of a decision of the Supreme Court in the case of Re B (A Child) [2013] UKSC 33. Those familiar with that decision will understand that the Supreme Court in that case gave prominence to the need for courts to approach the question, the very question in this case, as to whether a child should be removed from the natural family and adopted, in a manner which pays full respect to the human rights duties imposed upon a court, to respect Article 8 family life rights, and only to grant such an order where it is "necessary" to do so, or in the phrase used by Baroness Hale, when "nothing else will do".
7. Also, the judges of the Supreme Court were unanimous that the test that a court of appeal should apply in auditing the judgment of a judge who has made an adoption order should be to consider whether or not that outcome was "wrong", as opposed to the approach that had been taken prior to Re B, which was to contemplate a somewhat higher test of only interfering when the appellate court was satisfied that the judge was "plainly wrong".
8. I suspect it will inevitably follow the decision in Re B that, at least for a time, more cases will be afforded permission to appeal in this difficult area than has hitherto been the case, or may be the case once the law settles down, but I have no hesitation in regarding the present application with respect to the future care of young J as being one that requires the full Court of Appeal to consider whether or not the judge was "wrong" in his determination in this case.
9. That is the primary reason why I give permission. In addition, I am concerned about certain matters within the judgment itself in the light of Re B. Firstly, the judgment contains no evaluation as to why the judge considered it was "necessary" to opt for adoption, rather than leaving J in the care of his grandparent. The judge uses the word "proportionate" in his judgment, but there is no explanation by the judge as to why he considers that the choice of adoption is proportionate.
10. In the light of what is said in Re B, and I would say in any event, it is incumbent upon a judge to set out expressly, not necessarily in long terms but in terms sufficient enough for the court to understand, why he has chosen adoption as opposed to placement in the family.
11. The Act of Parliament and case law stress that a judge must be satisfied that the parents' consent to adoption should be dispensed with because the child's welfare "requires" that. The judge does refer to that test but again, does not explain why he considers J's welfare requires this outcome. I ask rhetorically, "What was it about the circumstances of J and the offer of a home for him with the applicant that made it necessary to reject that offer and choose adoption?".
12. I would also suggest that it is necessary to understand just what support could be provided by the local authority or other agencies to meet some of the potential risks arising from J's placement with the family and again, the judge does not seem to encapsulate that aspect in his judgment.
13. Finally, and again it may be part of the same point but it goes to the structure of the judgment, the (and I would underline the word "the") question was to make the choice between special guardianship and adoption, and yet the judgment does not consider any of the benefits or, more importantly, detriments that would flow to J as a result of adoption. There is no reference to the all-important aspects of the welfare checklist in s.1 of the Adoption & Children Act 2002, in particular to the effect on J of no longer being part of his natural family and growing up as an adopted child. Those, I would suggest, would be essential matters. The adoption part of the judgment comes very much at the tail end and my fear is that the judge did not give it sufficient consideration.
14. For those reasons, in addition to the matters that Miss Gilliatt raises in her grounds in her skeleton, I consider that there is justification in this case for permission to appeal to be granted. I am told, and readily accept, that J is moving fairly swiftly through the adoption process and that prospective adopters may have been identified and the case may be going to panel in the near future.
15. It is important that everybody understands that this matter is now to be looked at by the Court of Appeal and it is important that no significant step is taken in the adoption process. I am therefore going to grant a stay of the placement for adoption order, pending determination of the appeal. In doing so, I obviously have not heard from the local authority and it is open to any party to apply back to the Court of Appeal to vary the stay that I have just put in place. Equally, the fact that a stay is in place does not prevent the local authority carrying on with paperwork and other matters to keep the case ready for adoption if the appeal is unsuccessful, but it plainly is a stay on the effect of the placement for adoption order, and that is that no active step can be taken to achieve the placement of the child for adoption pending the outcome of the appeal.
16. Setting the scene thus, it must be plain as a pikestaff that we must determine this appeal as soon as possible. Notwithstanding that the vacation is upon us, I would hope that this appeal could be heard in September. I direct that the respondents -- they will be the parents, if they choose to do so, the local authority and the guardian -- are to file a skeleton argument in response to the application by 31 August. I choose that slightly longer date because I think it is important that those who file their skeleton arguments get to see the judgment that I have just given, so that they can understand the additional points that I have in mind.
17. Thereafter, the appeal is to be heard on the first available date; a time estimate of three hours should be set for it. The case is suitable to be heard by a court of three judges of the Court of Appeal but one might be a High Court judge. It is to be heard, if possible, in September.

Order: Application granted