P (A Child)

In a permission application concerning care and adoption proceedings, the Court of Appeal should not assess the merits on an incomplete record where there is a properly arguable concern that the assessment process or the reasons for a material ruling may have been inadequate. The application may be adjourned for a fuller hearing, with directions for urgent preparation of missing transcripts, statements, reports and the appeal bundle. The court may also express the view that the case has sufficient merit to justify legal aid and that representation would assist, although the grant of legal aid remains a matter for the Legal Services Commission.

The father applied for permission to appeal against decisions of Nottingham County Court. On 23 August 2012, the judge ruled that the child should not be returned to either parent. On 4 October 2012, the judge made a final order sanctioning the child’s placement for adoption. The father challenged the findings about his aggression and the adequacy of his assessment, including the refusal of an independent social worker assessment.

The Court of Appeal had only limited documentation, including an incomplete note of the August hearing. The central issue was whether the proposed appeal could fairly be assessed without fuller evidence of the assessments, reports and reasons for the material decisions.

Application adjourned. Lord Justice McFarlane did not determine the merits of the proposed appeal or grant permission at this stage.

1. The court had insufficient material to assess the appeal fairly. The available note did not set out the assessment material relied upon by the lower court, and it did not explain the refusal of the father’s application for an independent social worker assessment.
2. The father had raised a sufficiently serious concern that the assessment process might have been inadequate. That concern required fuller investigation, particularly because the lower court had relied on allegations of aggression and had discounted later anger-management evidence.
3. The permission application was adjourned for a three-hour hearing before three judges, one of whom could be a High Court judge, on notice to the other parties. The full appeal was to follow if permission were granted.
4. Directions were made for urgent transcripts of the three judgments delivered by the lower court and of the hearing concerning the independent social worker application. The local authority was directed to prepare the relevant statements and reports in an appeal bundle.
5. The court considered that the case had sufficient merit to justify legal aid and that representation would materially assist the next hearing. The decision whether legal aid should be extended remained for the Legal Services Commission.

The operative order was that the application be adjourned.

1. Court of Appeal (Civil Division) — On 6 February 2013, the permission application was adjourned for a fuller three-judge hearing, with directions for further transcripts and an appeal bundle. Citation: [2013] EWCA Civ 124.
2. Nottingham County Court — On 23 August 2012, the judge ruled that the child should not return to either parent. On 4 October 2012, the judge made a final order sanctioning placement for adoption.