E (a child), Re

Permission to appeal may properly be granted where the lower court’s analysis of its powers is unclear and requires clarification. An arguable inconsistency may also justify permission where delay and uncertainty are relied upon against a parent’s proposed assessment, while the court’s own orders concerning placement and further expert assessment necessarily create comparable delay and uncertainty. The merits of the proposed assessment and care arrangements remain for the full court. Grounds concerning the local authority’s influence or human rights may be renewed, although they may not materially advance the appeal.

The mother sought permission to appeal an order made by His Honour Judge Wyn Richards in Swansea County Court on 5 December 2000. The child, S, was in care and living with prospective adopters whom the guardian ad litem and judge considered too old to adopt. The judge refused a freeing order, left S with them temporarily, and permitted further psychiatric or psychological assessment. The mother also sought discharge of the care order, an assessment of whether S could safely be cared for by her, and contact. The central question was whether there were sufficiently arguable errors in the judge’s understanding of his powers and treatment of delay to warrant permission to appeal.

Lord Justice Ward, with Lord Justice Rix agreeing, granted permission to appeal and directed a legal aid assessment. The court did not determine the substantive merits of the mother’s applications.

1. The judge’s treatment of his powers was insufficiently clear. It was arguable that he had not recognised a clear and unfettered discretion to order an assessment, but had considered himself constrained by the local authority’s position under the care order. Clarification of that issue justified permission.
2. There was also an arguable inconsistency in the treatment of delay and uncertainty. The judge relied on those considerations in assessing the mother’s proposed assessment, yet refused the freeing order, accepted that S might need to move from the existing placement, and permitted further psychiatric or psychological assessment. Those steps themselves involved delay and uncertainty. It was therefore arguable that the mother should be permitted to use that period to establish whether she could ultimately care safely for S.
3. The court doubted that the arguments based on excessive attention to the local authority’s view and human rights would take the application much further, but permitted those grounds to be renewed before the full court.

• Court of Appeal (Civil Division): Granted permission to appeal from the order of His Honour Judge Wyn Richards dated 5 December 2000 and directed a legal aid assessment.
• Swansea County Court: Refused a freeing order for the proposed adoption by Mr and Mrs L, left the child with them temporarily, and permitted further psychiatric or psychological assessment. The mother’s applications included discharge of the care order, assessment of her potential care, and contact.