M-B & Ors (Children)

A second appeal from the High Court requires an important point of principle or practice, or another compelling reason. Disagreement with care findings or ordinary procedural complaints does not meet that threshold. An adjournment is a discretionary balancing exercise, reviewed only if plainly wrong. In freeing proceedings, the court must first decide whether adoption promotes the child’s welfare throughout childhood and then whether parental consent is unreasonably withheld. Existing care findings may be central to assessing the realistic prospect of reunification. Protective injunctions under the inherent jurisdiction may be made without notice where urgency justifies it, but the affected person must promptly receive the evidence and an opportunity to challenge the order. A power of arrest is statutory and cannot be attached to an injunction made solely under the inherent jurisdiction.

The mother sought permission in twelve applications arising from care proceedings concerning five children, proceedings to free the youngest child for adoption, and protective injunctions. The care orders were made in the Inner London and City Family Proceedings Court, and her appeals were dismissed by Ryder J in the Family Division on 8 December 2004. HH Judge Horowitz QC later refused an adjournment and freed the youngest child for adoption. High Court judges had made the injunctions without notice after permission under section 100 of the Children Act 1989 to invoke the inherent jurisdiction. The central issues were whether the second-appeal threshold was met, whether the adjournment and freeing decisions were plainly wrong, and whether the injunctions and powers of arrest were lawful.

Disposition. Permission to appeal was refused on all matters except the two injunction orders. The court, sitting alone on permission applications, had no jurisdiction to determine the substantive appeal at that stage.

1. The earlier directions orders had fulfilled their purpose and were spent. There was therefore nothing effective to appeal against.
2. Under section 55(1) of the Access to Justice Act 1999, a second appeal required an important point of principle or practice or another compelling reason. The ordinary care proceedings disclosed neither. The care findings had been properly reviewed by the High Court, and the application for permission failed.
3. Refusing an adjournment was a discretionary balancing exercise. The appellate court could interfere only if the decision was plainly wrong. Judge Horowitz had balanced the mother’s claimed need for documents and representation against the urgent need to avoid delay and protect the child’s welfare. No arguable error was shown.
4. Freeing proceedings involved two stages: whether adoption would safeguard and promote the child’s welfare throughout childhood, and whether the parent was unreasonably withholding consent. The judge was entitled to rely on the findings in the care proceedings, the expert assessments, and the absence of any realistic prospect of reunification. Adoption was therefore in the child’s best interests, and consent was properly dispensed with. The parallel Article 8 assessment was also satisfied because the order was lawful and proportionate.
5. The Family Proceedings Court lacked jurisdiction to grant the protective injunctions, so permission under section 100 of the Children Act 1989 was required before the High Court could invoke its inherent jurisdiction. A power of arrest could not be attached to such an injunction because that power was statutory. The decisions in Re G (Wardship) (Jurisdiction: Power of Arrest) (1983) 4 FLR 538 and Harrison and Another v Lewis; R v S [1988] 2 FLR 339 made that clear.
6. The without-notice procedure was justified by urgency and the perceived risk to the children. Nevertheless, affected persons should receive the supporting evidence and an early opportunity to seek variation or discharge; a return date would ordinarily be preferable. Protective orders could be made without sworn evidence, but the local authority’s failure to comply promptly with the order to file evidence was inexcusable. The injunction issues were directed to be reconsidered on notice by Ryder J, with any fresh or continuing orders under the inherent jurisdiction excluding powers of arrest. Reporting restrictions were granted.

• Court of Appeal (Civil Division). On 26 April 2005, permission to appeal was refused save in relation to the two injunction orders. Conditional directions were made for their reconsideration.
• High Court, Family Division. Ryder J dismissed the mother’s appeals from the care orders on 8 December 2004. HH Judge Horowitz QC refused an adjournment and freed the youngest child for adoption on 18 January 2005. Roderic Wood J and Holman J made protective injunctions under the inherent jurisdiction in March and September 2004.
• Inner London and City Family Proceedings Court. Final care orders were made in respect of the five children, with the youngest child’s care plan providing for adoption.