P-S (Children)

Permission to appeal an interim child-welfare decision should be refused where the judge directed himself correctly in law, exercised the broad discretion available and gave sufficient reasons. A complaint that the judge failed to warn of a possible form of order will not ordinarily justify permission if it was not raised below and no materially different submission could have been made. Subsequent evidence may reinforce the appropriateness of the interim arrangement, particularly where returning children before the final hearing would expose them to unacceptable risk.

Northumberland County Council applied for an interim care order concerning five children. HHJ Taylor decided that the mother could care for the three elder children during the interlocutory period, but that the two younger children faced a real risk of harm and should be placed in foster care. The mother sought permission to challenge the partial removal, arguing that she had not been sufficiently warned that this course was under consideration. The central issue was whether there was a proper basis to interfere with the judge’s interim discretionary decision.

Application refused. Thorpe LJ, with Lloyd LJ and Hughes LJ agreeing, refused permission to appeal against the decision that the two younger children should remain in foster care during the interlocutory stages.

1. The mother’s principal complaint was that the judge had not sufficiently warned her advocate that he might remove only two children. Even assuming that complaint was correct, it did not justify permission. It had not been raised before the judge when permission to appeal was sought and had been conceived only later. In any event, no materially different submission could have been made: the matters relied on had already been advanced and considered.
2. On review, the judge had directed himself correctly as to the law, exercised a very broad discretion and sufficiently reasoned his conclusion. His reasoning identified a real risk of harm to the two younger children, the mother’s over-stretched circumstances and her ability to cope with the three elder children on an interim basis.
3. Thorpe LJ added that detailed reports subsequently received from a chartered clinical psychologist and an independent social worker demonstrated, with hindsight, that the judge’s discretionary decision had been wise. In those circumstances, returning the two younger children to the mother before the final hearing would have been unthinkable.

Order: application refused.

• Court of Appeal (Civil Division): The application for permission to appeal was refused on 11 February 2009: [2009] EWCA Civ 305.
• Newcastle-upon-Tyne County Court: HHJ Taylor made an interim care decision under which the mother retained the three elder children, while the two younger children were placed in foster care during the interlocutory stages.