NO: B1/2001/2709
Neutral Citation Number: [2002] EWCA Civ 733
IN THE SUPREME COURT OF JUDICATURE                    
IN THE COURT OF APPEAL (CIVIL) DIVISION
ON APPEAL FROM THE MEDWAY COUNTY COURT
(HHJ ELLIS)
	Royal Courts of Justice
Strand
London WC2

Thursday, 9th May 2002
B e f o r e :

LORD JUSTICE THORPE 

and 

LORD JUSTICE LAWS
 
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I N  T H E  M A T T E R  O F 

RE: F & J (children) 

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Computer-Aided Transcript of the stenograph notes of
Smith Bernal Reporting Limited,
190 Fleet Street, London EC4A 2AG
Telephone No:  020 7404 1400  Fax No:  0207404 1424
(Official Shorthand Writers to the Court)
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MR N BAKER(instructed by Pearsons, Solicitors) appeared on behalf of the applicant father
MISS M CHATTERJEE(instructed by Medway Council Legal Services) appeared on behalf of Medway Council 
MISS E COLEMAN (instructed by Bassetts, Solicitors) appeared on behalf of the guardian 

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J U D G M E N T
1.	LORD JUSTICE THORPE: Behind this application for permission there is a complex history, which it is unnecessary for me to set out in any detail. Suffice it to say that, on 23rd November 2001, HHJ Ellis, sitting in the Medway County Court, had to deal with the future of three children, the youngest of whom was J, who is three years of age. There were many issues for him to decide in relation to the older children and in relation to the case presented by their mother. 
2.	The case in relation to J involved the consideration not only of the mother as a potential carer but also of the father, who is the applicant for permission in this court this morning. The father had established himself in the estimation of the local authority as a suitable permanent carer for this little boy, and that was their position in the early summer of 2001. However, by the time the case came for trial in the late autumn they had abandoned the father as a potential carer and presented to the court a care plan which provided for J's adoption. So their application in relation to J was for both a care order and a freeing order. 
3.	There was also an application before the court for an order terminating contact under section 34(4) of the Children Act 1989. The care plan underlying the applications proposed that, pending identification of a suitable family, weekly contact should be maintained between J and his father in recognition of the very strong bond between them. The care plan then proposed that, post identification, contact should be reduced to once a fortnight until placement, when it should terminate. The guardian's position was that, even after placement, there should be annual face-to-face contact, but that desirable arrangement should be sacrificed if its consequence would be to delay substantially the identification and placement. 
4.	The application to this court for permission was dealt with on paper on 21st February 2002, when I said that the rejection of the father's case for rehabilitation was unappealable, and on that premise so too was the rejection of his opposition to the freeing order. I expressed concern, however, about the judge's sparse reasoning for making the section 34(4) order against the father. That is explained in judgment from page 22, line 28, to page 23, line 11. However, the order as drawn by the court provides only for the care order and the freeing order. No order was drawn under section 34(4). 
5.	Mr Baker, who has presented his client's case throughout with great ability, points out that my provisional reasoning on 21st February is fundamentally flawed because, if the court was to make a freeing order, then there could be no question of a contact order lying beside it. If Mr Baker is right in that criticism, it follows that the judge fell into error when he took up the determination of the application under section 34(4) at page 21, line 24, and considered and granted, independently, the application, in the face of the opposition, first of the mother and then of the father. As Mr Baker submits, once the judge had dealt with the freeing application and granted that application against both mother and father, holding that their oppositions were unreasonably maintained, it was unnecessary for him to continue to consider any question arising under section 34(4). That would only have been necessary had he granted the care order but refused the freeing order. 
6.	The adjourned hearing which I directed has produced further information from the local authority as to events over the last six months. The information is only to be found in a sparse skeleton filed this morning by Miss Chatterjee, in which she states that contact since Christmas last has been dominated by J and that the applicant has failed to set any boundaries. That information is coupled with the starker information that the problems encountered by the short-term foster parents in dealing with J after contact sessions have broken the placement and that on Monday last he had to be moved to another family. These are very serious developments, albeit only established by this skeleton and that only derived, not from the social worker in the case, but from a facilitator who has been present at most of the contact sessions. 
7.	So what to do? Mr Baker submits that there should be a further investigation by the guardian and that his application for permission to appeal the freeing order should be further adjourned. Miss Coleman, who has been most helpful to the court in providing a skeleton argument, and this morning oral submissions on behalf of the guardian, expresses his very profound anxiety at the breakdown of J's short-term placement. He, through her, emphasises that, for him, continuing contact between J and his father is second priority to establishing as soon as possible a secure placement. For the local authority, Miss Chatterjee tells us helpfully that a number of families have been identified as possible adopters. Four in particular seem to be potentially suitable and two are in the borough. She submits that, had it not been for the proceedings in this court, J would probably have already been, if not placed, at least matched. 
8.	What then should we do today? On the one hand, there is undoubtedly a potential sense of injustice in the father. He has throughout, and certainly since 23rd November, sought to be available for his son. He had no perception of difficulty during the contact meetings. He had no knowledge of the repercussion in the foster parent family. He had no knowledge of the impending breakdown. He has had no information as to all this, save what he hears in court this morning at second or third hand. On the other hand, there are the interests of this little boy, and there can be no doubt at all that the continuation of proceedings in this court is a brake upon the impetus to achieve a long-term home for him. 
9.	The prospects of a successful ultimate challenge to the freeing order do not, in my judgment, appear sufficient to embark upon the process of independent investigation by the guardian, which Miss Coleman offers, should the court direct it. I have reached the firm conclusion that the process of limited investigation initiated by the paper order reveals a state of affairs that only confirms the urgent priority of achieving placement for J, and accordingly it is our duty to bring proceedings in this court to an end by refusing the outstanding application for permission.
10.	LORD JUSTICE LAWS: I agree. 
11.	There followed an application for public funding: granted.