H (Children), Re

In child-placement proceedings, a judge has a very broad discretion to depart from conventional procedure where the children’s welfare requires it. That discretion may permit a substantive application to revoke placement orders to be determined at an appointment listed for directions, even at short notice. The appellate question is whether the judge acted within that broad ambit, rather than whether another procedure might have been preferable. Where care and placement orders already exist, parental recovery may be assessed against the children’s timescale. A history of serious drug misuse may justify requiring a lengthy period of demonstrated abstinence before return is contemplated. The refusal to allow the application to proceed was therefore upheld.

The parents of two boys sought to revoke placement orders made after care proceedings in which both parents’ longstanding drug addiction had been considered. The orders had not been appealed. The parents relied on claimed progress in overcoming drug use and sought to proceed with their application.

The application was listed for a short directions appointment. The county court judge instead heard the substantive application and refused it immediately, finding that no sufficient change of circumstances had been shown. He declined to await a further medical report. Permission to appeal was initially refused on paper by Hughes LJ, but the application was renewed before the Court of Appeal. The central issue was whether the judge had been entitled to determine the application at the directions appointment and refuse it on the evidence then available.

Permission to appeal was granted, but the appeal was dismissed. Wall LJ delivered the judgment, and Thorpe LJ agreed.

1. The county court judge had a very broad discretion in proceedings concerning children. Although the application had been listed as a directions appointment, the judge was entitled, where he considered it in the children’s interests, to bypass conventional procedure and determine the substantive application. The Court of Appeal applied the approach described by Butler-Sloss LJ in Re B (Minors) (Contact) [1994] 2 FLR 1.
2. The judge was entitled to conclude that parents with a history of serious drug misuse would need to demonstrate a lengthy period of being entirely drug-free before the return of the children could be contemplated. The parents’ recovery timetable could properly be assessed against the children’s timetable, particularly since care and placement orders had already been made and remained unchallenged.
3. The later reports of Dr Forshall supported the judge’s assessment that substantially more time was required before the parents’ ability to care for the children could safely be established. That confirmation reinforced the conclusion that the decision to proceed without awaiting the further report fell within the judge’s discretion.
4. The appellate court’s function was limited to deciding whether the judge had been entitled to act as he did in all the circumstances. It was not to substitute its own view of the preferable procedure. The judge had not acted outside the broad ambit of his discretion.

Wall LJ made a separate, expressly incidental request that the mother reconsider refusing further testing in the proceedings concerning the parents’ daughter. That observation did not determine those proceedings.

• Court of Appeal (Civil Division): Permission to appeal was granted on renewal. The appeal was dismissed.
• Court of Appeal, permission stage: Hughes LJ refused permission on paper, principally because of delay, the judge’s entitlement to act as he had, and the need for finality in the children’s interests.
• Taunton County Court: On 16 July 2009, HHJ O’Malley refused the parents’ application to revoke the placement orders, having determined the substantive application at a directions appointment and finding no sufficient change of circumstances.