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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1049.html
Cite as: [2002] EWCA Civ 1049

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Neutral Citation Number: [2002] EWCA Civ 1049
2002/1277

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
(Her Honour Judge Coates)

Royal Courts of Justice
Strand
London WC2A 2LL
Friday, 28th June 2002

B e f o r e :

LORD JUSTICE THORPE
MR. JUSTICE WALL
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C (A CHILD)

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(Computer Aided Transcript of the Stenograph Notes
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0207421 4040
Fax No: 0207831 8838
Official Shorthand Writers to the Court)

____________________

MISS C. JAKENS (instructed by Messrs Brookes & Co., Chichester, West Sussex) appeared on behalf of the Applicant.
MISS MAGEE (instructed by Messrs Edward Hayes, Chichester, West Sussex) appeared on behalf of the Respondent Mother.
MISS G. TAYLOR (instructed by West Sussex County Council) appeared on behalf of the Local Authority.
MISS C. BUDDEN (instructed by Messrs Naunton Lynch Hall, Worthing, West Sussex) appeared on behalf of the Guardian Ad Litem.
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HTML VERSION OF JUDGMENT
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Crown Copyright ©

  1. LORD JUSTICE THORPE:This is a particularly sad case that comes by way of application from an order of the judgment of Her Honour Judge Coates sitting in the Brighton County Court. She had to decide the future of three children, two of whom are boys in their teens, the children of the mother but not of the applicant father. The only child of their union is S, who was born on 9th May 2001 and who is therefore nearly 14 months of age.

  2. The application before the judge was brought by the West Sussex County Council, who sought interim care orders in relation to the two teenagers but a full care order in respect of S. They were supported in their application by the guardian but opposed by the parents, the mother and father of S, who were throughout separately represented. One of the striking features of the case is that both mother and father offered themselves for judgment as a united couple. That presentation was confirmed and emphasised by their marrying on 9th May 2002, only days before the trial of these issues.

  3. The local authority's case was a relatively unusual one. There was a wealth of evidence that the living conditions which the mother provided as householder and housewife were almost indescribably unacceptable. There were major issues over hygiene and cleanliness, and, as the judge found, a seeming propensity to put possessions and chattels and such encumbrances in higher priority than humans, and particularly the children in her charge. A feature of the case is the disparity in ages. The mother is almost a generation older than the father who is still only 24 years of age. Their relationship commenced in August 1999.

  4. The outcome of the case in one perspective is surprising and unfair to the father. There is no doubt at all that the origin of all the local authority's concerns lay with the mother. Effectively, the much younger father was sucked into an environment created by the mother to which he made little active contribution. The criticism of him was essentially that he had passively failed to make any rectification of the mother's propensities and weaknesses. But an outcome that seems to permit the two older children to return to an environment that has proved chronically unsatisfactory, contrasted with the removal permanently and absolutely of the youngest child from the parents, and particularly from the father who has shown great devotion to the child, is unbalanced. We must approach this case by concentrating on options for S alone. It is manifestly not open to Miss Jakens to argue her application for permission to appeal on the foundation of a submission that, if interim care orders were appropriate for the two teenagers, then nothing more Draconian should have been contemplated for S.

  5. The judge reviewed the history profoundly. She had a great deal of expert evidence before her. The tenor of the expertise was to recognize the father's good qualities, but nonetheless was supportive of the judge's ultimate conclusion. Miss Jakens was instructed shortly after the judgment of 31st May to settle an application to this court for permission. The judge had refused permission at the hearing. Grounds were signed by Miss Jakens on 13th June and embodied in the notice of application received by the court on the following day. Seemingly, the father came to the realisation that a future for him as the mother's husband was intolerable. At some stage towards the weekend of the 15th he went, I think, to his own parents for that weekend. Over the weekend he resolved on a final separation.

  6. The first attack on the judgment below was formulated prior to the relatively dramatic separation of the parties, occurring barely a month after the celebration of the marriage. The notice of application referred to the intention of the applicant to seek to file further evidence and, when the papers were put before me as an urgent application for permission, I directed an oral hearing on notice and any further evidence within seven days. That order was made on 19th June. The applicant's affidavit setting out his fresh evidence came on 24th June, augmented by Miss Jakens' skeleton argument on the 26th. We hear the application today on the 28th.

  7. Miss Jakens has presented this application very attractively, and nobody could have more persuasively urged her client's cause. But it is selfevident that there are huge difficulties in the path of a grant of permission. The judge tried the case out fully and carefully. She delivered a full judgment, explaining her findings, her acceptance of expert guidance and from there her conclusions. All that was achieved less than a month ago. The separation thereafter is extremely recent, and time alone will test its quality as well as its foundation. I have very great sympathy for the applicant father. He must have lived in a state of the greatest turmoil since the judgment in the court below, and in such emotional confusion lasting and wise decisions are hard to take. It may be that what he seeks to present as a profound and final end to the relationship between them will prove to be just that. But only time will tell. Whatever may be the evolutions in the lives of the parents, the life of the child continues and will not wait for adult change. S has been in foster care for some considerable time, albeit that prior to the final hearing the parents were having five day a week visiting contact. But his current placement cannot be a final placement. It is therefore important that he should not root himself where he is, and it is equally important that he should move to his ultimate home in time for him to make a profound psychological attachment.

  8. The situation has been reviewed by the guardian ad litem, who met the father to discuss these changes on 25th June and who has furnished us with a note of that meeting. Certainly, there is nothing within the note that could justify the guardian ad litem in supporting this application or even in adopting a position of neutrality. Both the guardian and the local authority oppose this application. Albeit that Miss Magee for the mother has added her voice in support of the application, the fact is that the skeletons furnished by both Miss Taylor for the local authority and Miss Budden for the guardian ad litem underline the difficulties that confront an application for a full appeal. When we contemplate a timetable and the needs of a child, we must remember that this is only an application for permission. Were we to grant permission, it would then be necessary to find a listing which could not be done immediately, given the heavy listing of family work over the course of the next few weeks. Then, even if there were a successful appeal, all the court could do is send the case back for retrial, asking the judge to evaluate the new circumstances. All that constitutes a timetable that extends beyond weeks into months, and it is precisely that sort of extension that proceedings in public law strive to avoid.

  9. One important aspect which I have yet to mention is that the future for this little boy is not yet completely settled. The local authority's application for a freeing order and for an order under section 34(4) terminating contact is yet to be heard. Obviously the judge will have to conduct a profound inquiry in the face of refusal of consent to the freeing order. We have been told that there is a directions hearing next week. We have been told that the extended family are seeking leave to intervene in those proceedings to put forward positive proposals. Plainly, there will be some delay before that chapter can be planned forward to final hearing, and plainly it is a final hearing that deserves a relatively urgent listing. But the point I want to make is that the father has the opportunity of bringing before the court on the freeing order application the change of circumstances which lie at the heart of this application for permission. He will, through Miss Jakens, say to the judge that, given the fundamental change and given all that he has to offer this little boy, how can it be said that his withholding of consent is unreasonable? That is a case which the judge will have to weigh. It is not of course to be equated with a retrial which this court might order at the conclusion of a possible appellate process, but it remains an opportunity for the father to at least present to Judge Coates an alternative option to the only two options that she contemplated on 31st May. I fully accept that this is, for the father, a tragic outcome to that tragic experience. But, in the end, we have to apply consistent standards in the determination of applications for permission, and I am unhesitatingly of the opinion that this application does not meet the high standard that is necessarily set before an application for permission is allowed to proceed. I am in no doubt that this application must be dismissed.

  10. MR. JUSTICE WALL: I agree. Like my Lord, I have some sympathy for Mr. C. We have not heard Miss Taylor on this application, but I express considerable surprise that the local authority did not intervene earlier in the lives of D and J, given the appallingly squalid conditions in which they were living since 1997, and, according to the information obtained by the local authority, much earlier. I equally find it surprising that, in a case where it would seem to me selfevident that the local authority would need to share parental responsibility with the mother for the remainder of D's minority, and probably for the remainder of J's minority, the judge should have accepted the submission of the local authority that there should be interim orders in relation to those two children.

  11. The acceptance of interim orders in relation to those two children gives the impression of unfairness all the more starkly when a full care order is made in relation to S. But as my Lord has indicated, we are dealing here with an extremely careful judgment which reviewed the facts impeccably, which made assessments of the personalities, and which reached conclusions on the available material, which in my judgment cannot be challenged. In those circumstances, it would not merely be grossly delaying the decision in relation to the future of S, but also raising false hopes in the father if this court were to give permission for an appeal which, in my judgment, would be doomed to failure.

  12. I would not wish to raise any false hopes in Mr. C's mind but, like my Lord, I recognize that there is an application which now has to be made to free S for adoption. Mr. C has at least the opportunity to go back to the judge to explain in detail the change of circumstances which has occurred and to attempt to persuade the judge to reconsider the position in relation to S's future in the context of the father's refusal to give his agreement to the application to free. That opportunity is open. It is clear that, when one is dealing with a small child of this age, the court must move with a degree of speed to ensure, as my Lord indicated, that final placement is consistent with the child's psychological needs. Of course, the other side of that equation is a fair hearing for the adult and the child before that decision is made. It is most fortunate that this experienced judge, who has dealt with the case throughout, will continue to deal with that application. There are matters still to be debated in relation to S's future. In my judgment, the proper forum for that debate is a further application before the judge in relation to the freeing application made by the local authority.

  13. For those reasons, in addition to those given by my Lord, I am of the clear view that this application for permission to appeal should be refused

    14. Order: Application refused; detailed assessment of the guardian ad litem's costs.

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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1049.html