T (A Child)

An appellate court reviewing the exercise of a wide judicial discretion in child welfare proceedings should intervene only where the decision was plainly wrong, involved a gross error, or was wholly inappropriate. Where the order has been implemented, an appeal may serve no practical purpose because the court cannot restore the position that existed beforehand. The focus should then remain on the child’s current welfare and any future orders required to protect or rebuild relationships. Disagreement with the first-instance judge, or the fact that difficulties have followed implementation, does not itself establish an appealable error.

The appellant sought permission to appeal against orders made by McFarlane J on 17 May 2007 and 12 July 2007, the latter being amended on 24 July. The orders directed that a child should be informed of his biological and familial history, including that his biological father had undergone gender reassignment, and refused a stay of the life-story work.

By the time of the Court of Appeal hearing, the information had been communicated and the work had proceeded, although difficulties had arisen in the child’s relationship with the appellant. The central questions were whether there was any practical purpose in an appeal and whether the first-instance judge had plainly erred in exercising his discretion.

Lord Justice Wall refused both applications.

1. The Court of Appeal was a reviewing court. In a child welfare case involving a wide judicial discretion, it would intervene only if the first-instance judge had overstepped the mark, misapplied the law, exercised the discretion wholly inappropriately, or reached a plainly wrong conclusion. The fact that a party strongly disagreed with the decision was insufficient.
2. The order directing disclosure of the child’s biological and familial history had been implemented. The Court of Appeal could not put the clock back, so an appeal against that order would serve no practical purpose. Remitting the matter to the first-instance judge would cause delay without achieving anything material.
3. The judge’s decision that the child was old enough to be told about his origins, and that the work should be undertaken by the NYAS caseworker, was conventional and supported by the guardian and the child’s mother. On the papers and submissions, there was no gross error and the exercise of discretion was one open to the judge.
4. The refusal of a stay was also within the judge’s discretion. Any effective intervention should have been sought promptly from the Court of Appeal when the stay was refused.
5. The child’s future relationship with the appellant, and the implications of the difficulties revealed by the guardian’s report, were matters for the first-instance judge on the evidence. Wall LJ emphasised the importance, where consistent with welfare, of children knowing their heritage and of preserving or restoring an appropriate relationship with a parent who had undergone gender reassignment. These observations did not alter the appellate court’s limited reviewing role.

The applications were refused.

• Birmingham District Registry: McFarlane J made orders on 17 May 2007 and 12 July 2007, amended on 24 July 2007, directing disclosure of the child’s biological and familial history and refusing a stay of the life-story work.
• Court of Appeal (Civil Division): the applications for permission to appeal were refused.