W & Anor (Children), Re

Permission to appeal in care proceedings may be granted where proposed grounds disclose an arguable challenge to the lower court’s reasoning, including its treatment of local-authority responsibility, certainty for children and repeated interim orders. A challenge concerning the compatibility of the statutory care-order scheme with human-rights legislation may independently justify permission as a matter of particular public importance. Granting permission does not determine the merits of the appeal.

The application arose from full care orders made by Her Honour Judge Sander at Plymouth County Court for three children. The threshold findings, based on abuse by the father and the mother’s failure to protect the children, were not challenged. The proposed appeal concerned only two children and whether full care orders should instead be replaced by interim care orders to monitor a care plan contemplating their possible return to the mother.

The applicant challenged the reasoning concerning local-authority responsibility, certainty for the children and avoidance of repeated interim orders. She also raised the compatibility of the Children Act’s operation after a full care order with the Human Rights Act. The father made a separate permission application.

Lord Justice Ward allowed permission to appeal on the mother’s application. The court did not determine the substantive appeal or the human-rights issue.

1. The proposed challenge to the full care orders was arguable. The lower court had proceeded on the basis that the local authority could be relied on to implement and review the care plan, although an interim care order already gave the authority the necessary shared responsibility.
2. The lower court had treated a full care order as necessary to provide certainty for the children, while acknowledging that the outcome remained unknown. Its concern about avoiding a long series of interim care orders did not necessarily justify the conclusion, since such orders could be dealt with administratively. The reasoning that the children should not have further proceedings hanging over them was also open to challenge in circumstances where uncertainty was inherent in the assessment.
3. The proposed argument that the Children Act, in ending the court’s control upon the making of a full care order, was incompatible with the Human Rights Act raised a point of particular public importance. Ward LJ expressed no concluded view or optimism about its merits, but considered that the issue should be addressed in the interests of certainty in this branch of law.
4. The appeal was directed to a court of three Lord or Lady Justices, including appropriate family-law and human-rights expertise. The local authority and guardian ad litem were encouraged to use one counsel where no conflict justified separate representation. The father’s application was adjourned to be heard on notice and with the mother’s appeal.

1. Court of Appeal (Civil Division): In [2001] EWCA Civ 58, Ward LJ allowed permission to appeal on the mother’s application and adjourned the father’s application.
2. Plymouth County Court: Her Honour Judge Sander made full care orders on 1 November 2000. No separate citation is stated in the judgment.