CW (a child), Re

Permission to appeal in care proceedings requires a real prospect of success or another compelling reason. Bare denials of earlier findings, unsupported by new evidence, do not establish an arguable appellate challenge. Where threshold is independently supported by findings about prior injury, entrenched denial, anger and inability to protect, a difficult question about the uncertain-perpetrator principle need not be decided. After a final care order, the first-instance judge is functus officio and cannot stay implementation or supervise adoption. A free-standing Human Rights Act application cannot be used as a merits review. Stays pending Strasbourg proceedings are exceptional; Rule 39 interim measures may be the more appropriate route.

Parents sought permission to appeal against the dismissal by His Honour Judge Horowitz QC of their application to stay implementation of a local authority care plan for their daughter’s adoption. Earlier care proceedings had found that an older child was injured while in the care of both parents, although the perpetrator could not be identified. In later proceedings, threshold was agreed and was based on the earlier findings, the father’s denial and anger, and the mother’s inability to protect the child. Judge Horowitz made a care order and later a placement order. The parents applied to the Strasbourg Court and sought a stay pending its decision. Judge Horowitz held that he had no jurisdiction to grant the stay. The central issues were whether there was any arguable challenge to the earlier decisions and whether a first-instance court could stay implementation pending Strasbourg proceedings.

1. Permission and appellate restraint. The application for permission to appeal was dismissed. Under rule 52.3(6) of the Civil Procedure Rules 1998, permission required a real prospect of success or another compelling reason. The Court of Appeal could not interfere merely because it might evaluate the case differently. There was no arguable error of law, principle, fact-finding, fairness or evaluation, and no compelling reason to hear the matter.
2. Threshold. The earlier findings were properly made under section 31(2) of the Children Act 1989. The principle in Re CB and JB (Care Proceedings: Guidelines) [1998] 2 FLR 211, and the treatment of uncertain-perpetrator cases in Lancashire County Council v B [2000] 2 AC 147, raised a possible question about the position of a future child of a parent with a new partner. That question did not require determination because the threshold findings were independently sufficient. They included the prior injury findings, the father’s entrenched denial and propensity for abusive anger, and the mother’s inability to protect the child. The agreed findings were later confirmed by evidence. Bare assertions and denials supplied no arguable basis for reopening them.
3. Convention compliance and jurisdiction. Part IV of the Children Act 1989 was Convention-compliant. Judge Horowitz correctly applied Article 8 and proportionality. Adoption was an interference of the greatest seriousness, but he was entitled to conclude that it was necessary and proportionate to secure the child’s welfare. After making the final care order he was functus officio, with no supervisory or residual jurisdiction to stay the care plan or direct the adoption process. A free-standing application under section 7(1) of the Human Rights Act 1998 could address non-compliant implementation or departure from an approved care plan, but could not provide a merits review by another first-instance judge.
4. Adoption targets. Local public service agreements and financial incentives did not, without more, create a conflict invalidating the local authority’s proposal. The decisive decisions were for the court, assisted by the independent children’s guardian. There was no arguable basis for investigating adoption targets in this case.
5. Further observations. Obiter, a first-instance judge would rarely be justified in staying implementation pending Strasbourg proceedings. A short stay pending consideration by the Court of Appeal might be appropriate. A stay by the Court of Appeal pending Strasbourg review would also be rare, and an invitation to the Strasbourg Court to adopt interim measures under Rule 39 might be the more suitable mechanism.

• Court of Appeal (Civil Division): On 30 April 2007, Mr Justice Munby, sitting as a single judge, refused permission to appeal against the dismissal of the application for a stay.
• Principal Registry of the Family Division: His Honour Judge Horowitz QC made a care order on 23 October 2006 and subsequently made a placement order. On 2 February 2007 he dismissed the parents’ application to stay implementation of the care plan, explaining his reasons in a judgment dated 8 February 2007.