D (A Child), Re

In care proceedings, permission to appeal may be granted where there are sufficient features of concern to warrant consideration by a full appellate court of whether the judge conducted the welfare balancing exercise correctly. This remains so even where the trial judge had the advantage of hearing the evidence and the appellate court may ultimately conclude that the decision was not plainly wrong. The court should also consider whether the delay caused by an appeal will unduly prejudice the child. Ongoing contact with prospective carers and the child’s continued placement elsewhere may mean that the delay causes no undue prejudice.

A local authority sought permission to appeal against orders made by Sunderland County Court in care proceedings concerning four girls. The judge made care orders for the three older children, but ordered that the youngest child, E, live with her paternal grandparents, subject to supervision and review. The local authority argued that the judge had given excessive weight to his personal impression of the grandparents and insufficient weight to professional assessments and evidence concerning their conduct. The central issue was whether the concerns were sufficient to justify an appeal, having regard to the trial judge’s evidential advantage and the possible effect of delay on E’s welfare.

Application for permission to appeal granted. The stay was continued until determination of the appeal, and the interim care order concerning E was renewed.

1. The local authority’s proposed appeal concerned whether the judge had properly balanced his own impressions of the paternal grandparents against the unanimous professional assessments that they might be unable to meet the children’s needs or protect them from the risks arising from their family circumstances.
2. The court recognised that the trial judge had heard a lengthy body of evidence, seen the witnesses and formed his own impressions. It remained possible that the full court would conclude that the balancing exercise had been correctly conducted or that the result was not plainly wrong. Nevertheless, the concerns identified were sufficient to merit consideration by the full court.
3. In deciding whether the appeal should proceed, the court also considered the likely effect of delay on E. She knew her grandparents, had a good relationship with them and continued to see them fortnightly under supervision. In the meantime, she remained with her foster carer. Her welfare would not therefore be unduly prejudiced by the further delay.
4. The court directed that the appeal should take place as quickly as possible. It also indicated that representation of the parents and updated material from the guardian ad litem could be considered if appropriate.

Lord Justice Henry agreed with Lady Justice Hale’s reasons and the proposed order.

• Court of Appeal (Civil Division): On 29 March 2001, permission to appeal was granted, the stay was continued and the interim care order concerning E was renewed: [2001] EWCA Civ 503.
• Sunderland County Court: His Honour Judge Carr made the orders under challenge on 23 January 2001, including care orders for the three older children and a residence order that E live with her paternal grandparents.