F & J (Children), Re

In deciding whether to prolong permission proceedings concerning a freeing order, the court must balance any potential procedural injustice to the parent against the child’s welfare and the urgency of securing a permanent placement. Where limited investigation reveals serious placement difficulties and confirms an urgent need for placement, and the prospects of a successful challenge are insufficient, further investigation or adjournment may properly be refused. The judgment also identified an arguable procedural point under the Children Act 1989: once a freeing order has been made, a separate contact determination under section 34(4) may be unnecessary. That point was not finally determined.

On 23 November 2001, HHJ Ellis in the Medway County Court considered the future of three children, including J. The local authority sought a care order and a freeing order to facilitate adoption, having withdrawn its earlier support for the father as a permanent carer. The judge also considered and granted an application under section 34(4) of the Children Act 1989 to terminate contact, although the drawn order contained only the care and freeing orders.

The father sought permission to appeal. He argued that, once the freeing order had been made, the judge should not have separately determined the contact application. He also sought further investigation following new information about the breakdown of J’s foster placement. The central issue was whether the proceedings should be adjourned or brought to an end.

1. Permission refused. The Court of Appeal refused the father’s outstanding application for permission to appeal the freeing order.
2. The father had initially been regarded by the local authority as a suitable permanent carer. By the hearing before HHJ Ellis, the authority supported adoption and sought care and freeing orders. The judge also granted an application under section 34(4) of the Children Act 1989 to terminate contact. No separate section 34(4) order was drawn.
3. Lord Justice Thorpe accepted that there was a potential error in the judge’s separate treatment of contact. If a freeing order had been made, no contact order could stand alongside it, so consideration of section 34(4) would only have been necessary if the care order had been granted but the freeing order refused. The Court did not finally determine that issue.
4. New information indicated that contact had contributed to serious difficulties in J’s short-term foster placement, which had broken down. Although the information was sparse and based indirectly on a contact facilitator, it confirmed the urgency of securing a stable long-term home. Continuing the proceedings would delay the placement process.
5. The prospects of a successful challenge to the freeing order were insufficient to justify an independent investigation by the guardian or a further adjournment. Balancing the father’s potential sense of injustice against J’s interests, it was the Court’s duty to bring the proceedings to an end by refusing permission.
6. Lord Justice Laws agreed. Public funding was granted.

• Court of Appeal (Civil Division): On 9 May 2002, refused the outstanding application for permission to appeal in [2002] EWCA Civ 733.
• Medway County Court (HHJ Ellis): On 23 November 2001, made care and freeing orders concerning J and granted an application under section 34(4) of the Children Act 1989 to terminate contact. No citation for that decision is stated in the judgment.