D (A Child)

In care proceedings, the Court of Appeal does not rehear evidence or revisit factual findings unless clear error is shown. A challenge based mainly on disagreement with the trial judge’s findings will not ordinarily be arguable. Although courts seek to keep children with extended family where possible, Convention of 1950 Article 8 permits refusal of an interim placement where the proposed home does not meet the child’s particular care needs and refusal is proportionate. Delay and intervening final care and adoption decisions may further undermine an application concerning an interim placement. Permission to appeal was refused.

The paternal grandmother applied for permission to appeal against an order of Mr Recorder Crichton in the Milton Keynes County Court on 17 February 2005. In care proceedings concerning M, the recorder refused her application for interim residence and continued the interim care orders.

The grandmother challenged the recorder’s factual findings, the refusal to adjourn so that a psychologist could give evidence, and the alleged infringement of her and M’s rights under Article 8 of the Convention of 1950. By the time of the Court of Appeal hearing, a final care order had been made and M had been declared free for adoption. The central issues were whether the proposed appeal was arguable and whether the refusal of interim residence was compatible with Article 8.

Application refused. Lord Justice Wilson refused permission to appeal and made no order for costs.

1. Article 8 and family placement. The recorder had expressly considered M’s Article 8 rights and the general preference for a child to remain with extended family where possible. That preference did not require the court to approve the grandmother’s home. In light of M’s substantial developmental delay and need for especially good parenting, together with the concerns about the placement, the refusal to restore him to the home was a proportionate response to the circumstances (para [11]).
2. Appellate review of facts. The Court of Appeal could not conduct a rehearing of the evidence. Unless clear evidence of error was shown, it had to proceed on the recorder’s findings. The grandmother’s numerous challenges were mostly minor and did not disclose an arguable error (paras [13]–[14]).
3. Expert evidence and adjournment. Refusal to adjourn for the psychologist’s attendance was not shown to be erroneous. The recorder had considered the existing reports, while the psychologist had apparently not been asked to report on the later concerns and his evidence was materially out of date. An adjournment would also have caused further delay (para [12]).
4. Delay and intervening events. Almost ten months had elapsed since the order under challenge. The local authority’s later breach of an agreement to consult before removing M, which the recorder criticised, did not make the proposed appeal arguable. The subsequent final care and adoption decisions further demonstrated the difficulty of obtaining effective relief, although permission was refused independently because the appeal was not arguable (paras [3], [10], [14]).

1. Court of Appeal (Civil Division): Lord Justice Wilson refused permission to appeal against the Milton Keynes County Court order and made no order for costs.
2. Milton Keynes County Court: On 17 February 2005, Mr Recorder Crichton refused interim residence with the paternal grandmother and continued the interim care orders. On 14 June 2005, he made a final care order in favour of the local authority and dismissed the grandmother’s application for defined contact.