S (A Child)

On a second appeal in care and placement proceedings, permission should be granted where the proposed appeal raises an important point of principle or practice, or another compelling reason, and has a real prospect of success. The court may need to examine whether the process was fair where a parent who succeeded at first instance had to respond to an appeal without representation and the consequence was permanent family separation.

Permission may also be warranted where the appellate judge overturned a decision reached after substantial oral evidence, substituted care and placement orders without hearing evidence, or failed to address whether the identified risk made removal proportionate. The merits should not be prejudged at the permission stage.

The father sought permission for a second appeal concerning his infant son. A district judge had made a residence order in the father’s favour, with a supervision order to the local authority, after a four-day hearing at which the father gave evidence for two days.

On the local authority’s appeal, the circuit judge, after a hearing concluded in one day without oral evidence, allowed the appeal and made care and placement orders. The father had been represented at first instance but appeared in person on the appeal. The central issues were the fairness of that process, the weight due to the district judge’s advantage in hearing the evidence, the propriety of substituting final orders, and whether the risk of harm made removal proportionate.

1. Permission granted. This was a second appeal. The permission test was satisfied because the proposed appeal raised important points of principle or practice and had a real prospect of success. The grant of permission did not express a view on the merits.
2. The fairness of requiring a parent to respond without representation to an appeal which could result in the permanent severance of the child from the parent and the parent’s family required examination.
3. The appeal also raised whether the circuit judge had sufficiently respected the district judge’s greater advantage, particularly because the district judge had heard the father give oral evidence for two days. That issue required consideration in the light of the Supreme Court’s recent comments in Re B.
4. Further issues requiring determination were whether the circuit judge, having heard no oral evidence, could properly substitute care and placement orders or should instead have remitted the case for rehearing, and whether the risk associated with the father’s untested care was sufficient to make those orders proportionate.
5. The threshold need not be satisfied in relation to each parent. Evidence relevant to welfare may range more widely than the basis on which the threshold is crossed, but the parent whose care is being considered must know what is asserted against him and have an opportunity to answer it. On the material then available, any threshold issue was likely to be subsumed within the proportionality question.
6. The matter was directed to be listed before three Lord Justices, expedited, and stayed, with contact restored to its previous level.

• Court of Appeal (Civil Division): Permission granted for a second appeal from the decision of Her Honour Judge Parry at Cardiff Civil Justice Centre. The listing was directed before three Lord Justices.
• First instance: District Judge Regan made a residence order in favour of the father with a supervision order to the local authority on 5 April 2013.
• Appeal below: Her Honour Judge Parry allowed the local authority’s appeal and substituted care and placement orders.