S (A Child), Re

Permission to appeal should be refused where the proposed grounds do not identify any sustainable criticism of the order or reasoning below. A complaint about an issue which the lower court expressly left undecided cannot found an appeal. Where the lower court’s decision on the issue actually argued is firmly supported by the evidence and the reasoning discloses no error, the application is plainly hopeless.

The local authority obtained a care order in respect of D, with a care plan for adoption. The mother accepted that D could not return to her but argued that long-term foster care should be preferred. She later sought permission to appeal, raising whether the order should have been interim or final and whether the adoption care plan should have been approved. Her written case also argued that a freeing order was inappropriate where the child had a secure relationship with a foster carer seeking adoption.

The application came before the Court of Appeal after an initial paper decision and subsequent production of the county court judge’s transcript. The central question was whether the proposed grounds disclosed any arguable error in the order made below.

1. Application refused. Lord Justice Thorpe gave the principal judgment, with Mr Justice Harrison agreeing. The decision was therefore unanimous.
2. The county court judge had made a care order to the local authority, with contact at its discretion. The mother’s position was that D should remain in long-term foster care rather than proceed under a care plan for adoption.
3. The issue whether the order should be interim or final had not been presented to the judge at the hearing. It therefore could not provide a proper basis for permission to appeal.
4. The judge had expressly approved the care plan for adoption. He accepted that D could not return to her mother and concluded that long-term foster care would leave D insecure, subject to reviews and possible future applications concerning residence or contact. That reasoning was strongly supported by the expert evidence and the guardian ad litem.
5. The argument concerning the supposed inappropriateness of a freeing order was based on a misunderstanding. The transcript showed that the judge had said that he might or might not be right about that issue and had expressed no view. The Court of Appeal therefore found no criticism of the order or reasoning capable of succeeding.
6. The application, properly understood, was plainly hopeless and was refused. A public funding assessment was ordered.

• Court of Appeal (Civil Division): Permission to appeal from the Taunton County Court was refused.
• Taunton County Court: His Honour Judge Cotterill made a care order to the local authority, with contact at its discretion, and approved a care plan for adoption.