G-P (A Child)

On an application for permission to appeal concerning contact with a child in foster care, the appellate court must subject the first-instance decision to anxious scrutiny. Permission should nevertheless be refused where the judge acted within her discretion, considered the child’s wishes and feelings, evaluated the competing expert evidence and welfare risks, and gave proper and sufficient reasons. A child’s wishes must be taken seriously and given appropriate weight, but they are not determinative. The court may conclude that less contact is in the child’s best interests where other considerations outweigh the child’s preference.

A, aged fourteen, sought permission to appeal against HHJ Shipley’s order of 20 September 2007. The order placed her in foster care under a care order and provided for supervised monthly contact with her mother, together with limited telephone contact. A and her mother sought a return to twice-weekly contact.

The proposed appeal alleged that insufficient weight had been given to A’s wishes, that the judge had wrongly preferred the evidence of Dr Fong and the guardian to that of Dr Epps, and that inadequate reasons had been given for the decision. The central issue was whether those grounds had a realistic prospect of success.

1. Application refused. Black J considered the proposed grounds with anxious scrutiny and concluded that none had a realistic prospect of success sufficient to justify permission to appeal. Wall LJ agreed entirely.
2. The decision about contact lay within HHJ Shipley’s discretion. The judge had expressly considered the risks that reduced contact might increase absconding, cause A to worry about her mother, or make it harder for her to settle in foster care. She had also considered the strong opposition of A and her mother and whether the proposed reduction might be counter-productive.
3. A child’s wishes and feelings must be taken into account and given proper weight. The court should ensure that the child understands that her views have been heard and considered. Those wishes are not determinative, however. A child may know what she wants without being able to assess fully what would be in her best interests.
4. The judge was entitled to prefer the evidence of some experts over others. Dr Fong had assessed A and both parents and had observed contact. The judge was also entitled to take account of the evidence concerning the mother’s difficulties, the unauthorised contact and the letter encouraging deceit and possible absconding. Those matters were relevant to the likely effect of contact on the foster placement.
5. The judge had given clear, proper and sufficient reasons for preferring the evidence of Dr Fong, the guardian and the local authority to that of Dr Epps, while taking A’s wishes into account. The appellate court therefore had no proper basis to intervene. Wall LJ added that the contact order was variable and was not immutable, although any change would principally require a change in the mother’s position.

• Court of Appeal (Civil Division): On 17 January 2008, the application for permission to appeal was refused. [2008] EWCA Civ 64
• Family Division, Sheffield District Registry: On 20 September 2007, HHJ Shipley made a care order, endorsed a plan for A to remain in foster care, and ordered supervised monthly contact with her mother.