C (A Child), Re

Permission to appeal out of time may be granted in a child case where the delay is reasonably explained, the applicant has actively pursued the matter, and refusing permission would cause injustice without significant or irremediable prejudice to the child. The appeal must proceed with utmost urgency. Permission depends on showing an arguable ground; it does not determine whether the appeal will succeed. A judge may satisfy a legal requirement expressed as “required” where the substance of the reasoning shows that the correct test was applied, even if that word is not used. A challenge to the balancing of a relative’s positive parenting history against safeguarding risks may be arguable where the comparison or weighing process is said to be materially flawed.

Maternal grandparents sought permission to appeal out of time against a Sheffield County Court order made by Mr Recorder Oldham on 2 July 2012. The order imposed a full care order and a placement order dispensing with the mother’s consent to adoption. The Recorder had found the threshold established and concluded that the mother could not care for the child, while the grandparents’ proposed placement was not realistic. There was no challenge to the threshold findings.

At an earlier hearing, McFarlane LJ adjourned the application because the Recorder’s judgment was unavailable in transcript form: [2012] EWCA Civ 1220. On receiving the transcript, the court considered whether the proposed appeal disclosed an arguable error in the evaluation of the grandparents’ successful parenting history, the identified risk factors, and the decision to extend time.

1. Disposition. The application for permission to appeal out of time was granted. The court decided only that the proposed appeal had an arguable ground. It did not determine whether the appeal would succeed.
2. Substantive legal test. Although the Recorder did not use the word “required”, his reasons showed that he had applied the substance of the correct test governing the care and placement orders. He had concluded that relocation to the grandparents was not a realistic option, that care and adoption were the only realistic alternatives, and that the order had to be made. There was therefore no realistic argument that he had erred in law merely by omitting the statutory terminology.
3. Arguable grounds. The proposed appeal raised two interlinked and arguable complaints about the evaluation of outcome. First, the Recorder might have treated the grandparents’ parenting of their two children with learning difficulties as the relevant comparator, without adequately addressing the significance of their successful upbringing of two other children who had become well-adjusted adults. Secondly, it was arguable that he had given excessive cumulative weight to the identified risks, including past sexual offending, family vulnerabilities, and the grandparents’ protection of the mother from a predatory man, without sufficiently explaining the comparative balance between those risks and the grandparents’ positive parenting history.
4. Delay. The delay was not treated as a bar. The grandparents had sought permission below, pursued the matter as litigants in person, and had not simply failed to act. Apart from the passage of time, no significant adverse consequence was identified, and the court considered that the child would suffer no insuperable detriment if the appeal proceeded. Any further delay was nevertheless undesirable, so the appeal was required to proceed with the utmost speed.

1. Court of Appeal (Civil Division): On 11 October 2012, Lord Justice Munby granted permission to appeal out of time, holding that an arguable ground had been established but reserving the merits of the appeal. [2012] EWCA Civ 1369.
2. Court of Appeal (Civil Division): On 12 September 2012, McFarlane LJ adjourned the permission application pending production of the Recorder’s judgment in transcript form. [2012] EWCA Civ 1220.
3. Sheffield County Court: Mr Recorder Oldham made a full care order and placement order on 2 July 2012.