P (A Child)

Where a permission application raises important, unresolved questions about a litigant’s capacity to conduct proceedings, the Official Solicitor’s role as litigation friend, and ECHR Article 6, the application should be heard on notice to the relevant parties by a full court. Serious allegations about professionals and procedural fairness should be addressed before permission or any substantive appeal is determined. A stay of a placement order is not automatic. It may be refused where placement before the hearing is unlikely and continuing the local authority’s search for prospective adopters is appropriate.

The applicant, mother of KP, sought permission to appeal against care and placement orders made by HH Judge Butler QC in the Nottingham County Court on 29 August 2007. The orders followed findings that the threshold criteria under section 31 of the Children Act 1989 were satisfied and proceedings seeking a placement order under section 21 of the Adoption and Children Act 2002. Her consent to the placement order was dispensed with under section 52(1)(a). The applicant alleged that she had not received a fair trial under ECHR Article 6, challenged the expert evidence concerning her capacity to instruct solicitors, and disputed the Official Solicitor’s involvement. The central issue was how those capacity, representation and fair-trial questions should be considered.

Disposition. The application for permission to appeal was adjourned for hearing by a full court on notice to the Official Solicitor and the local authority, with the appeal to follow if permission were granted.

1. The application raised important and unresolved questions concerning the procedure to be followed when the Official Solicitor is invited to act as litigation friend for an adult said to lack capacity to conduct proceedings. It also raised serious allegations concerning the expert evidence and the fairness of the care and placement proceedings. Neither the Official Solicitor nor the local authority had yet had an opportunity to address those matters.
2. The judgment did not determine whether the applicant had capacity, whether the Official Solicitor’s appointment was lawful, whether the expert had properly addressed capacity, whether Article 6 had been breached, or whether the placement order should be quashed. Those issues were reserved for the properly constituted hearing. The applicant’s reliance on Masterman-Lister v Brutton & Co (Nos 1 and 2) ([2002] EWCA Civ 1889; [2003] EWCA Civ 70; [2003] 1 WLR 1511) was recorded but not determined.
3. A stay of the placement order was refused. KP’s serious medical difficulties made it highly unlikely that she could be placed before the full-court hearing. The local authority was therefore not to be inhibited in searching for prospective adopters, even though a later successful appeal might result in the placement order being set aside.
4. The Nottingham County Court hearing listed for 11 February 2008 was to be vacated. The Official Solicitor was invited to provide a statement of his general practice and his actions in the case, together with submissions on the relationship between ECHR Article 6 and representation by a litigation friend. A copy of the judgment was sent to the Nottingham County Court for further directions.

1. Court of Appeal (Civil Division): The application for permission to appeal was adjourned to a full-court hearing on 4 March 2008, with any appeal to follow if permission was granted.
2. Nottingham County Court: HH Judge Butler QC made care and placement orders on 29 August 2007. The applicant challenged those orders and the fairness of the process leading to them.