F & H (children), Re

On an application for permission to appeal in care and adoption proceedings, the Court of Appeal may intervene only where there is an arguable case that the first-instance judge made an error of law, lacked sufficient evidential material, or exercised discretion outside the proper range, so that the decision was plainly wrong. The appellate court must not substitute its own assessment of welfare or second-guess a decision properly open to the judge. In applying the paramount welfare principle, the court must balance the Article 8 rights of all concerned, but the children’s welfare is paramount. A judge may give substantial weight to a parent’s dishonesty where it undermines the reliability of assessments and the court’s confidence in the parent’s ability to provide stable care. The application for permission was refused.

The father applied by video link for permission to appeal against care and placement orders made by His Honour Judge Roddy in the Liverpool County Court on 12 June 2007. The orders concerned two young boys, one the father’s biological child and the other a child whom he had treated as his son. The orders were made after the parents’ relationship deteriorated, the father’s medical history was disclosed, and professional witnesses concluded that further assessment and delay were unjustified. The first-instance court determined that the children required secure adoptive placements.

The transcript of the first-instance judgment was unavailable, but the Court of Appeal considered the judge’s order and a solicitor’s note sufficient to determine the application. The central questions were whether the judge had erred in law, failed properly to evaluate the evidence or Article 8 rights, acted with apparent bias, or exercised her discretion in a manner arguably plainly wrong.

1. Permission refused. The proposed appeal had no reasonable prospect of success. The first-instance order and the available note showed no error of law, and the decision was plainly open to the judge on the evidence. The Court of Appeal could determine the application without the missing transcript because the order contained a narrative of reasons and the solicitor’s note was clear.
2. The appellate court’s role on an application for permission is limited. It asks whether there is an arguable case that the judge made an error of law, made findings without sufficient material, made an order not properly open in the exercise of discretion, or otherwise exercised that discretion so that the order was arguably plainly wrong. The court must not substitute its own view of the welfare outcome.
3. The judge had applied the paramount welfare test under Children Act 1989 and the statutory scheme governing placement orders under the Adoption and Children Act 2002. She was entitled to accept the unanimous professional opinion that further assessment and delay could not be justified, and to conclude that adoption, rather than long-term care, best secured the children’s future.
4. The father’s Article 8 argument was misconceived. Every Children Act case requires a balance between the Article 8 rights of the participants, but the children’s welfare is paramount. The adults’ Article 8 interests are, in that sense, subservient to the children’s welfare. The judge was entitled to conclude that adoption was the proportionate outcome.
5. The allegation of bias was unsupported. The first-instance judge’s earlier decision concerning another child did not establish apparent bias. The application was dismissed.

1. Court of Appeal (Civil Division): On 24 August 2007, Lord Justice Wall refused permission to appeal against the care and placement orders made by His Honour Judge Roddy in the Liverpool County Court on 12 June 2007.
2. Liverpool County Court: On 12 June 2007, His Honour Judge Roddy made full care orders under section 31 of the Children Act 1989 and placement orders under section 21 of the Adoption and Children Act 2002.