K (Children), Re

At the permission stage, the Court of Appeal may extend time and grant permission where proposed grounds disclose sufficient merit for full examination of the process, without expressing a concluded view on the ultimate merits. Serious questions arose where interim care orders were made in private-law proceedings despite the local authority’s earlier view that public-law intervention was unnecessary; the reasons were brief; repeated directions under CA 1989, s 37 appeared linked to securing parental co-operation; and the evidential basis for the s 38 threshold was not identified. The proposed appeal also raised whether the child’s welfare and placement with maternal grandparents had been assessed against complete information. Permission was granted for a full appeal, with directions to complete the appellate record.

Mr and Mrs B, the mother and stepfather of two boys, sought to appeal orders made by His Honour Judge Tyzack QC in Exeter County Court between December 2010 and January 2012. The orders included interim care orders, directions under CA 1989, s 37, and a special guardianship order placing one boy with his maternal grandparents.

They challenged the fairness and evidential basis of the process, the alleged emotional-harm threshold under ss 38 and 31, the placement decision, contact, assessments and refusal to adjourn. The initial permission hearing was adjourned because the appeal papers were inadequate. After further files and material were obtained, the central issue was whether the proposed grounds had sufficient merit to justify extending time and granting permission for a full appeal.

Lord Justice McFarlane gave the substantive judgment, with Lord Justice Ward agreeing. The decision concerned permission to appeal, not the final merits of the underlying care proceedings.

1. Permission and extension of time. After considering the additional court files and material, the court concluded that the points raised had sufficient merit to justify examination of the entire process by the full court. Time for appealing was extended, and permission was granted in relation to the orders made in December 2010, April 2011 and January 2012. The court expressed no concluded view on the ultimate merits.
2. Interim orders and statutory thresholds. The December 2010 interim care order had been made in private-law proceedings although the local authority had previously indicated that there were no grounds for seeking a public-law order. The judge’s reasons were extremely brief and appeared to assert, rather than demonstrate by reference to the evidence, that the interim threshold under CA 1989, s 38 was met. That provided a substantial ground for appellate scrutiny.
3. Use of s 37 directions. The judge had stated that the December order was intended to secure the parents’ co-operation with the local authority assessment. Once co-operation had been achieved, and in light of the local authority’s continuing position that there were no grounds for a further interim care order, the subsequent s 37 directions and renewed interim orders were open to question.
4. Evidence and welfare. The April 2011 judgment described earlier social-work reports as favourable, comprehensive and thorough, yet did not identify the evidence establishing reasonable grounds for believing that the child was suffering, or was likely to suffer, significant harm. The January 2012 decision also required examination of the evidential basis for the threshold, the effect of placing the child with maternal relatives despite expert concerns about family conflict, and whether the court had received a full account of the child’s troubled behaviour and the proposed placement’s suitability.
5. Appellate record. The Exeter files were materially incomplete. The parties were directed to ensure that all key documents were available in a core bundle for the substantive appeal.

1. Court of Appeal (Civil Division): On 30 August 2012, the court extended time and granted permission to appeal the orders made in December 2010, April 2011 and January 2012. [2012] EWCA Civ 1169
2. Exeter County Court: His Honour Judge Tyzack QC made the challenged interim care orders, s 37 directions and special guardianship order between December 2010 and January 2012.