G-F (Children)

In care and adoption proceedings, an appellate court should intervene only where the first-instance judge erred in law or was plainly wrong in exercising the welfare discretion. The court must distinguish the decision to make a care order from the separate question whether adoption requires parental consent to be dispensed with. The child’s welfare must positively require that step, with adoption itself kept in focus, as explained in [2008] EWCA Civ 535. Factual inaccuracies and procedural difficulties justify intervention only where they may have misled the judge or caused material unfairness. A judgment may satisfy the required legal tests when read as a whole, even if its concluding paragraphs do not expressly identify every statute, checklist or authority.

The mother and maternal grandmother sought permission to appeal against orders made by HHJ Greene in the Cambridge County Court in June 2012. The orders placed all three children under care orders. The eldest child was to live in foster care, while the two younger children were to be placed for adoption, with parental consent dispensed with.

The proposed appeals challenged the assessment of the mother and grandmother, the treatment of expert evidence, alleged factual errors, the effect of the mother’s diagnosis and the grandmother’s delayed legal representation. The mother also relied on Article 8 and the Autism Act. The central issue was whether the first-instance judgment disclosed an arguable error of law, procedural unfairness or plainly wrong exercise of welfare discretion.

1. Outcome. Lord Justice McFarlane refused both applications for permission to appeal. The proposed grounds had no reasonable prospect of success.
2. Appellate approach. The relevant question was whether HHJ Greene had erred in law or had been plainly wrong in exercising his welfare discretion. The judgment had to be read as a whole. Its failure to identify every statutory provision, welfare checklist or authority in the concluding paragraphs did not establish that the correct tests had not been applied.
3. Article 8 and support. The proceedings had to respect family life under the European Convention on Human Rights. The proper starting point was that the children should remain with their mother, unless separation was necessary and proportionate to protecting them. The judge had considered whether the mother’s diagnosis required a different approach at the residential assessment and had been entitled to conclude that the support provided addressed the relevant deficits.
4. Evidence and factual accuracy. The judge was entitled to reject or give little weight to Dr Janjua’s opinion because she had not had the papers, had not been instructed to conduct an expert assessment, had limited direct knowledge of the children and was found to lack balance, objectivity and judgment. Professionals must aim for complete accuracy in cases involving possible adoption, but the identified errors had not misled the judge or affected his conclusions.
5. Representation. The grandmother’s delayed access to legal representation was unfortunate, but it did not make the process unfair. The issues relied on in the proposed appeal had been before the judge, and no material prejudice was shown.
6. Dispensing with consent. The judge had correctly focused on adoption, rather than merely on the need for care orders. Applying the approach in Re P [2008] EWCA Civ 535, he had concluded that the welfare of the two younger children positively required parental consent to be dispensed with so that placement orders could be made. The applications were therefore refused.

1. Court of Appeal (Civil Division) refused both applications for permission to appeal on 14 January 2013: [2013] EWCA Civ 50.
2. Cambridge County Court made care orders for all three children in June 2012. The eldest was to live in foster care. The two younger children were to be placed for adoption, with parental consent dispensed with.