S (A Child), Re

In child-care proceedings, the child’s welfare is the paramount consideration. It may prevail over serious hardship, unfairness or perceived injustice to a parent who has done nothing wrong. On a renewed application for permission to appeal, the Court of Appeal’s gatekeeping function requires a high threshold. Permission should generally be granted only where the trial judge may arguably have been completely wrong. Where the judgment is careful, reasoned and detailed, and the papers do not disclose an arguable error, permission should be refused. Delay and the consequential impact on the child’s life must also be taken into account, although delay not attributable to the applicant should not be held against that applicant.

The case concerned a child, G, who had experienced premature birth, prolonged hospitalisation, foster care and a failed return to her parents. Following extensive proceedings in the Chelmsford County Court, Her Honour Judge Ludlow, on 22 June 2001, dismissed the mother’s application to discharge the care order and granted the local authority a freeing order. The parents’ applications for contact were dismissed, although no order was made on the local authority’s application to terminate contact.

The parents, acting in person, renewed an application for permission to appeal after its provisional refusal on paper. The central issues were whether the county court judge had arguably erred and how the child’s welfare and the delay before the application should affect the permission decision.

1. Permission refused. Lord Justice Thorpe confirmed the provisional refusal of permission made on 5 November 2001.
2. The court’s function on a renewed application for permission was that of a gate-keeper. Only a very small proportion of cases should proceed to appeal. In the ordinary case, permission would be justified only where the trial judge was arguably completely wrong. That was a high threshold.
3. The county court judge had produced a detailed, conscientious and reasoned judgment extending to almost 60 pages. On the papers, it was impossible to conclude that she had erred in the preferences she made or in the decisions she reached. The fact that the evidence was conflicting, including differing expert opinions, did not itself establish an arguable appellate error.
4. Decisions about the future of children are founded on the principle that their welfare is the paramount consideration. That principle may produce unfairness or even injustice to parents. The mother’s conduct, commitment and personal circumstances evoked considerable sympathy, but parental justice could not displace the welfare and needs of the child.
5. The application had been made nearly six months after the county court order, and the child’s life had moved on during that period. The delay was not attributable to the mother, because confusion within the court service had delayed receipt of the papers. Nevertheless, its consequences for the child could not be ignored. The parents’ loss of legal aid was likewise acknowledged as an apparent unfairness, but it could not outweigh the child’s paramount needs.

• Court of Appeal (Civil Division): renewed application for permission to appeal refused on 23 November 2001.
• Chelmsford County Court: on 22 June 2001, Her Honour Judge Ludlow dismissed the application to discharge the care order, granted the local authority a freeing order, and dismissed the parents’ applications for contact.