H (A Child), Re

An application for permission to appeal may be refused where it is brought substantially out of time and the only asserted change of circumstances was already considered by the lower court. The absence of a true new factor leaves no proper basis for reopening the decision. A challenge also faces a formidable hurdle where the lower court’s findings make the outcome effectively unchallengeable: the child’s welfare required adoption within the relevant recovery timescales, and the parent’s withholding of consent was objectively unreasonable. Where the child has already been placed with prospective adopters, the court may refuse an adjournment and direct that the application is not renewed or relisted if there is no realistic prospect of success.

This was an application by the mother for permission to appeal from an order made by His Honour Judge Hamilton in Birmingham County Court on 24 August 2001. The order was a freeing order concerning the child, A, on the basis that the mother’s consent to adoption could be dispensed with because it was being unreasonably withheld.

The application was filed eight months after the order. The mother did not attend and sought another hearing by fax, explaining that she had been released from prison the previous day and lacked funds to travel. The central issues were whether the delay and the asserted change of circumstances justified permission or an adjournment, in circumstances where A had already been placed with prospective adopters.

1. Permission refused. Lord Justice Thorpe held that the application was significantly out of time, having been filed eight months after the freeing order. The child had already been placed with prospective adopters, and the delay was itself a substantial obstacle.
2. The only ground advanced was an alleged change of circumstances. The changes relied upon had already been ventilated in detail before the county court judge. No true new factor had arisen between the judgment and the application, so the proposed challenge was hopeless.
3. The county court judge had concluded that the child’s welfare had to prevail over the mother’s deserts. The timescales of the mother’s recovery meant that adoption was inevitably the best means of meeting the child’s needs as she grew up. The judge had also found that the mother lacked a realistic appreciation of the capacity required to meet those needs, making her withholding of consent objectively unreasonable. Those findings constituted a formidable hurdle and left the outcome unchallengeable.
4. The request for another hearing was refused. Granting it would achieve nothing because there was no prospect of a successful challenge. The application was dismissed and ordered not to be renewed or relisted. A transcript was to be sent to the applicant at public expense.

• Court of Appeal (Civil Division): Lord Justice Thorpe refused the application for permission to appeal and ordered that it was not to be renewed or relisted: [2002] EWCA Civ 1021.
• Birmingham County Court: His Honour Judge Hamilton made a freeing order on 24 August 2001, dispensing with the mother’s consent on the ground that it was being unreasonably withheld.