H (Children)

On a renewed application for permission to appeal, the Court of Appeal must focus on what the lower judge did and whether the judge was entitled to proceed as he did. Its jurisdiction is limited; it cannot simply rehear or remake the case. Where serious concerns arise about the fairness of a substantive decision taken at an expected directions hearing, the permission application may be adjourned for prompt consideration by a fuller court on notice to the respondent. No conclusion on permission or the merits follows until that hearing.

The applicant parents sought permission to appeal against an order of HHJ O’Malley in the Taunton County Court dated 16 July 2009. The judge had refused their application for leave to revoke placement orders concerning their two sons.

The parents said that they had expected only a directions appointment, but that the judge had proceeded to determine the matter substantively. They relied on changed circumstances, including their recovery from drug addiction. On renewal, the central issue was whether the judge was entitled to deal with the application in that manner.

Lord Justice Wall did not determine the parents’ entitlement to permission or the merits of revoking the placement orders. He considered the application difficult because the care and placement orders had been made almost a year earlier, the children had been prepared for adoption, and time was important in their lives.

1. The Court of Appeal’s powers were limited. It had to examine what the county court judge had done and decide whether he was entitled to proceed as he had, rather than simply rehearing the case.
2. Wall LJ remained concerned that the parents, who had been represented, appeared expecting a half-hour directions appointment, whereas the judge had treated the matter as one capable of being dealt with immediately. That concern warranted consideration by a fuller constitution of the court.
3. The renewed application for permission was therefore adjourned for hearing as soon as possible, on notice to the local authority. If permission were granted, the appeal would follow. The operative order was: application adjourned.

The court made no finding on whether urgency, the judge’s discretion in children proceedings, or the parents’ changed circumstances justified the original decision.

• Court of Appeal (Civil Division): On 29 October 2009, Lord Justice Wall adjourned the renewed application for permission to appeal for hearing by a fuller court, on notice to the local authority. [2009] EWCA Civ 1264
• Taunton County Court: On 16 July 2009, HHJ O’Malley refused the parents’ application for leave to revoke placement orders concerning their two sons.