H (a child), Re

Permission to appeal against care and adoption orders should be refused where the appellant cannot show a real prospect that the lower court’s exercise of discretion was flawed or plainly wrong. The Court of Appeal will assess alleged defects in the context of the evidence and the child’s welfare, rather than determining whether individual professionals involved in the case could be criticised. A threshold concession under section 31(2) of the Children Act 1989 cannot be withdrawn at a late stage without material capable of undermining the lower court’s decision. Delay is especially significant where arrangements for the child’s permanent placement have progressed.

The mother sought permission to appeal, and an extension of time, against orders made by Her Honour Judge Shipley in the Sheffield County Court on 17 or 18 April 2007. The orders placed her six-year-old daughter in the care of Sheffield City Council and authorised placement for adoption without continuing face-to-face contact.

The mother filed her Appellant’s Notice on 7 January 2008. She challenged the quality of her representation, the evidence relied on by the judge, and the conduct of the hearing. The central questions were whether the delay should be excused and whether there was a real prospect that the orders resulted from a flawed exercise of discretion or were otherwise plainly wrong.

1. Applications refused. The mother’s application for permission to appeal and her application for an extension of time were both refused.
2. The Appellant’s Notice was filed on 7 January 2008, many months after the orders made on 17 or 18 April 2007. Although the mother relied on advice that an appeal against orders of this kind was extremely difficult, she should have appreciated that delay would make it increasingly difficult to challenge orders concerning a child. That difficulty was brought into sharp focus when the local authority informed her that C had been placed with prospective adopters on 9 November 2007.
3. The relevant enquiry was whether there was a real prospect of showing that the judge’s orders resulted from a flawed exercise of discretion or were otherwise plainly wrong. It was not enough to establish that individual professionals involved in the proceedings could be criticised. The material supplied by the mother did not suggest that the professional evidence relied on by the judge would have been displaced by a different presentation of her case.
4. The mother had conceded that the threshold in section 31(2) of the Children Act 1989 was crossed because C had suffered emotional harm through inconsistent parenting. She was able to make her views clear, and it was far too late to withdraw that concession. In any event, the material before the court did not show that the judge would have reached a different conclusion on the evidence.
5. The judge had recognised the mother’s progress, love and affection for C, and desire to care for her. She had also considered the mother’s history of depression, the expert diagnosis of personality disorder, the child’s needs, and the evidence that the mother was likely to become overwhelmed again by those needs, causing renewed emotional harm. The judge’s crucial finding was open to her on the evidence and disclosed no arguable error.

• Court of Appeal (Civil Division): Permission to appeal and an extension of time were refused. The orders made by Her Honour Judge Shipley in the Sheffield County Court on 17 or 18 April 2007 therefore stood.