P (A Child), Re

On an application for permission to appeal in child welfare proceedings, the Court of Appeal is a court of review, not a court of trial. Permission requires a real prospect of success or another compelling reason. The appellate court does not reweigh evidence, assess witnesses or substitute its own welfare judgment. A first-instance decision will ordinarily stand where the judge applied the correct legal tests and reached a conclusion open on the evidence, unless there is an error of law or the decision is plainly wrong. Use of the welfare checklist in section 1(3) of the Children Act 1989 is permissible and good practice.

Mr and Mrs S, the child’s maternal great-grandparents, sought permission to appeal against care and placement orders made by Recorder Anderson in the Leeds County Court on 18 December 2008. The threshold criteria for a care order had been conceded, and neither parent was able to care for the child. The Recorder therefore had to decide whether the child should remain with the great-grandparents under a kinship arrangement or be placed for adoption.

The Court of Appeal considered whether the Recorder had made an error of law, reached findings not open to her on the evidence, or was plainly wrong, and whether the proposed appeal had a real prospect of success or another compelling reason for being heard.

1. Permission test. Under CPR rule 52.3(5)(a) and (b), permission required an arguable real prospect of success or some other compelling reason for the appeal to be heard. The application failed that test.
2. Limited appellate function. The Court of Appeal is a court of review, not a court of trial. It does not ordinarily hear oral evidence, assess witnesses or make primary findings of fact. It asks whether the first-instance judge made an error of law and whether the orders and findings were open to her on the material before her.
3. Welfare discretion. In child cases the first-instance judge has a very wide discretion because there may be two reasonably available but imperfect solutions. The judge’s assessment will normally prevail where the correct legal approach was followed, unless there was an error of law or the decision was plainly wrong. A different view by an appellate judge would not suffice.
4. Application to the care and placement decision. Once the threshold criteria under section 31 of the Children Act 1989 were satisfied, the central issue was the child’s welfare and where, with whom and under what order he should live. The Recorder correctly treated the choice as being between a kinship placement and adoption.
5. Evidence and welfare checklist. The Recorder was entitled to consider observations and evidence concerning Mrs S’s hearing and eyesight when assessing her long-term capacity to care for the child. She had not made an impermissible medical judgment. Her use of the welfare checklist in section 1(3) of the Children Act 1989 was permissible and good practice, and her conclusions were open to her.
6. Family placement. The principle that children should, if possible, be brought up within their natural family did not require a kinship placement where the proposed carers could not provide long-term care and no other family member was available. Adoption was therefore a permissible welfare outcome.
7. The incorrect date on the care order was a slip requiring correction, but nothing turned on it. The Recorder had applied the correct tests, and the proposed appeal had no reasonable prospect of success. Permission to appeal was refused.

• Court of Appeal (Civil Division): in [2009] EWCA Civ 376, Lord Justice Wall refused permission to appeal.
• Leeds County Court: Recorder Anderson made care and placement orders on 18 December 2008.