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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> F & H (Children), Re [2002] EWCA Civ 1770 (25 November 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1770.html Cite as: [2002] EWCA Civ 1770

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHELMSFORD COUNTY COURT
(HIS HONOUR JUDGE DARROCH)

		Royal Courts of Justice Strand London, WC2 Monday, 25th November 2002

1. LORD JUSTICE THORPE: This is the hearing of an application for permission on notice with appeal to follow brought by the mother, M, and the guardian, Mrs Wood, of M's child, C. They challenge an order made by His Honour Judge Darroch in the Chelmsford County Court on 7th October. The application was directed in for an expedited hearing by me on 5th November and listing were able to find a gap today to bring it in.
2. The appeal raises a point of very slender significance. There was no question but that C could not be raised by her mother. She had been placed from the outset with foster carers, Mr and Mrs T, and there was again agreement that she should remain with them on a permanent basis. Indeed, M indicated that if there were an adoption application by Mr and Mrs T, although she might not consent, she would not object to the order being made. However, if the local authority were proposing to move C away from Mr and Mrs T in order to gain the advantage of adoption in some other family, then she would be in fierce opposition.
3. So when the case came into the list on the 7th, the judge before whom it was intended to be put could not take the case and it was transferred at short notice to Judge Darroch, who very helpfully took the case without having any opportunity for advance preparation. There was a dispute as to how he should dispose of it. The local authority wanted a full care order then and there. Both the mother and the guardian wanted the case put over for three months. They wanted that moratorium in order to see the outcome of Mr and Mrs T's application to be approved as adopters. There was also an application by mother and guardian to explain their position in oral evidence, and there are also complaint that the care plan did not specifically provide for C to have contact with her siblings, the earlier born children of M.
4. The judge gave a very brief judgment which has not been transcribed, but the advocates before the judge and the judge himself have all approved this brief note. The judge said:

"There is one contested issue in this matter as to whether to make a care order now or postpone for 3 months. The argument is that the child and [Mr and Mrs T] could be prejudiced if I make a final order. It is said that [Mr and Mrs T] could be suitable for residence and not adoption and that we need the adoption assessment in advance. It seems to me everyone agrees to adoption in some form. It is likely the child will remain with the adopters. Although the child is not troubled delay is not to be encouraged. I cannot see anything to be gained by delay. No issue as to the threshold. If [Mr and Mrs T] are not suitable for adoption an application could be made for residence. The time has come for a final care order."

5. The difficulty with that judgment is that, whilst the judge fully records the argument advanced by the mother and the guardian of prejudice to Mr and Mrs T by the making of the final care order, he nowhere fully answers the argument. It seems to me that the analysis is very simple. If Mr and Mrs T succeed in their application for approval as adopters, then of course there is no prejudice to anyone in the court having made a final care order on 7th October. But if Mr and Mrs T fail to win approval as prospective adopters, then there emerges a conflict between the benefit to C of maintaining her placement with Mr and Mrs T and the benefit to C of a future secured by an adoption order. If a care order had been made on 7th October, Mr and Mrs T would undoubtedly be prejudiced in advocating that the benefit of maintaining the placement outweighed the benefit of an adoption order; for there would be a final care order in place, the local authority would be firmly in the driving seat and Mr and Mrs T would be driven to apply for the discharge of the care order and a residence order.
6. In my judgment, that is not mere technicality. In my judgment a fairer chance would have been preserved for Mr and Mrs T if the judge had simply said: there will be an interim care order and the question of final order will await the outcome of the pending application for approval.
7. There is no prejudice to any party, and certainly no prejudice to C, in dealing with the matter by way of interim care orders renewable in the County Court. There is a prejudice to Mr and Mrs T, and thus both to M and to the guardian, in moving at once to the full care order. Although Mr and Mrs T are not presently parties to the proceedings, they are profoundly involved and they are potential parties. It is very important that any order made in public law proceedings should recognise the need for a sense of fairness in all those who are crucially affected by the court's order. I fear that were this order allowed to stand, Mr and Mrs T might feel some sense of unfairness and that might impact on their relationship with the local authority.
8. For all those reasons, I would set aside the care order made on 7th October and in its stead make an interim care order to run for 28 days, and then to be renewed by the usual practice in the Chelmsford County Court. The case will be listed again on 13th January, when the judge is to consider the local authority's application for the termination of contact under section 34(4).
9. We are most grateful to Miss Baruah, who has identified the deficiency in the judgment below in her full skeleton argument. We are equally indebted to Mr Wain, who has presented the local authority's case with his usual skill and realism.
10. MR JUSTICE MUNBY: I agree and have nothing to add.

ORDER: Application for permission to appeal granted; appeal allowed; no order for costs, save detailed assessment of the appellant's Community Legal Services Funding costs.

(Order not part of approved judgment)