Case No: B4/2011/2042
Neutral Citation Number: [2012] EWCA Civ 191
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WORCESTER COUNTY COURT
(HHJ RUNDELL)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 2 February 2012

Before:

LORD JUSTICE THORPE
LADY JUSTICE BLACK
and
SIR JOHN CHADWICK

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IN THE MATTER OF T (A child)
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(DAR Transcript of 
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Mr Buck appeared on behalf of the Appellant mother.

The Respondents did not appear and were not represented.

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Judgment

(As Approved by the Court)

Crown Copyright ©
Lord Justice Thorpe:

1.	HHJ Rundell in the Worcester County Court has been dealing with the seven children of the appellant in public law Children Act proceedings.  We are only concerned with her youngest child, T, who was born on 25 October 2009.  Separate proceedings were brought in relation to her since her birth post-dated the commencement of the proceedings in relation to the older children.

2.	The history of the case needs no investigation or even recording today save to say that both the appellant and T’s father were sentenced to terms of imprisonment arising out of offences in relation to the children.  T was the subject of care and placement orders and was placed with respective adopters on 23 November 2010 and these proceedings before HHJ Rundell related to the opposition of the parents to the adoption application which was brought last year.  They brought their opposition under the regime of the Adoption and Children Act 2002.  By section 47(5) they required the court’s permission to oppose the adoption and of course section 47(7) sets out the two hurdles that an applicant for such permission must clear, the first of which is to demonstrate change of circumstance.  

3.	It seems that there was a hearing on 12 May at which HHJ Rundell heard the appellant’s oral evidence in support of her application for permission.  The judge was moved on that occasion sufficiently to adjourn and to appoint a guardian, Mrs Long, who had been concerned and was concerned with the continuing proceedings in relation to the older children.  It seems that her report to be submitted in June was not in fact available until 8 July and certainly had not been served on the appellant when she came to court on 13 July.  The report of Mrs Long was important in that in brief terms it demolished the appellant’s application on the basis that her interview revealed not just no change for good but effectively change for bad.  Therefore in those circumstances the judge dealt with the case in swift order.  The father was represented but his advocate could really make no great contribution since his client was in prison and he had only had a brief word with him at the end of the previous week.  Sadly the appellant was herself unrepresented so the judge had the solicitor for the local authority bringing the application to adopt, the solicitor for the father who could make no real contribution, and nobody either for the appellant or for the guardian.  

4.	The judge, as we can see from the transcript of the proceedings, dealt with the case concisely and then concisely gave his judgment dismissing the mother’s application for permission and making the adoption order.  He emphasised the importance of expedition if the mother was to challenge.  She was refused permission by HHJ Rundell but applied to this court.  Her application came before McFarlane LJ on 17 November when he granted permission on the powerful basis that at the trial the appellant had had no sight of Mrs Long’s report, had no notion of its content and accordingly had the case decided against her without any opportunity to cross-examine or indeed to challenge in any other way the impact of this powerful report.  

5.	In preparation for this hearing the local authority and the guardian have made common cause; we are very grateful for the bundle that they submitted to the court on 26 January and to the skeleton argument of Ms Chadwick which makes a number of concessions.  First she concedes that the judge erred in failing to ensure that T was made a party to the proceedings; the consequence was that Mrs Long was not a properly appointed guardian and neither Mrs Long nor T were legally represented throughout the hearing.  She further observes that since Mrs Long is not a member of the Cafcass High Court team she could not represent herself.  Ms Chadwick further makes the crucial concession that the appellant never saw or read Mrs Long’s report of 8 July, even though it contains no privileged information relating to a third party which might have substantiated the exercise of a judicial discretion not to disclose following the guidance contained in Re D (Minors) (Adoption Reports: Confidentiality) [1995] 3 WLR 483.  Ms Chadwick squarely accepts very grave procedural deficiencies in the process of trial on 13 July last.  However, she asks us not to set aside the impugned orders on the grounds that really the appellant had no case at all upon which she could have hoped to succeed and accordingly to set aside the orders and return the case would be simply to waste time and money and put the adopters to unnecessary anxiety.  

6.	Whilst accepting that it is open to the guardian and the local authority to advocate that case, I am in no doubt at all that the procedural deficiency is altogether too great to allow the exercise of a discretion nonetheless to uphold the result below.  Furthermore, we must factor in the arrival of Mr Buck, counsel for the appellant, this morning.  He was only instructed at 4pm last night and he, perfectly naturally, feels that he is not in a position to do justice to the appellant’s case.  He has not had the court bundle served upon him; he’s only had the opportunity to read some disjointed paperwork.  Therefore the case could not have proceeded in this court today even if we had opted for a middle course, inviting submissions today on Mrs Long’s report.  The case has to go back.  I would set aside the orders made on 13 July and direct a re-trial before a different judge.  

7.	There are a number of footnotes.  The first is that HHJ Rundell was committed to doing justice by this child and also by her parents.  That is well illustrated by his decision to order a further investigation having heard the mother’s oral evidence on 13 May.  The procedural faults identified by Ms Chadwick were no doubt made inadvertently.  There was nobody before the judge to address him on the impact of the relevant paragraphs of the practice note in relation to The Children and Family Court Advisory and Support Service (Conduct of Litigation and Exercise of Rights of Audience) Regulations 2001.  Equally I am confident that HHJ Rundell was unaware that the appellant had had no sight of Mrs Long’s report and of course she was not herself represented to draw the deficiencies to his attention.  

8.	It is simply a matter that calls for the expression of regret rather than criticism.  We are told by Ms Chadwick that there are judges who do sit from time to time in this court where HHJ Rundell is the designated judge; we are also told that proceedings in relation to the older three have been adjourned pending the outcome of this hearing and are listed before the judge on Friday week.  There seems to be no reason why the two sets of proceedings should be interlinked in that way and it seems important that the listing in relation to the older children should stand.  It is important that the further hearing in relation to T should be expedited and dealt with if not on the same day then as soon thereafter as is practicable.  It is important that the appellant should continue to be represented and Mr Buck tells us that she has a full certificate.  It would be running an unnecessary risk to due process on the next occasion were Mr Buck not publicly funded to represent the appellant.  Those are the orders that I would propose.

LADY JUSTICE BLACK:
9.	I agree.

SIR JOHN CHADWICK:
10.	I also agree.

Order:  Application allowed and remitted