B & Anor, Re

An appellate court considering permission to appeal against care and placement orders must have sufficient papers to scrutinise serious challenges to the evidence, threshold, welfare analysis and proportionality. Where essential bundles are unavailable, it may adjourn the application to a full court and stay placement, balancing the risk of leaving draconian orders unexamined against prejudice caused by delay. Risk must be evidenced and related to the child. An unquantified risk is not a meaningful conclusion, and the local authority bears the burden of proof. Conduct towards professionals does not automatically establish risk to a child or justify adoption; the connection between conduct, child welfare and proportionality requires examination.

The parents, acting in person, sought permission to appeal in three linked applications concerning two children. The older child, J, aged two, was made subject to care and placement orders by District Judge Mellanby on 13 November 2013. An appeal was dismissed by HHJ Waller on 1 April 2014. The younger child was made subject to care and placement orders by Parker J on 23 May 2014, giving rise to a first appeal.

The applications raised challenges to the evidential basis for the threshold and welfare findings, the proximity of the alleged risks, proportionality, parental consent, the form of the placement order and the independence of a psychologist. The parents and this court did not have the relevant hearing bundles. The central issue was whether the permission applications should be adjourned so that the matters could be considered by a full court with adequate material.

Disposition. Lord Justice Ryder adjourned the three permission applications to a full court, with any appeal to follow if permission was granted. He granted a stay on placement of both children pending the hearing or any further application to the court.

1. The absence of the court bundles meant that serious questions about the evidence and any relevant legal policy could not be answered. The appellate court therefore had to balance the danger of leaving draconian care and placement orders without proper scrutiny against the inevitable prejudice caused by delay. The local authority was required to provide information about the children’s timetables and placement plans so that an expedited hearing could be listed.
2. Section 52(6) of the Adoption and Children Act 2002 provides that the parent whose consent is to be dispensed with is the parent with parental responsibility, subject to an exception not relevant on these facts. The birth father had no parental responsibility. His consent therefore did not have to be dispensed with before the orders were made.
3. The court identified serious arguable questions concerning whether the threshold and welfare analysis rested on evidence of a direct or sufficiently proximate risk, and whether orders for adoption were proportionate. A conclusion that a person is an unquantified risk is meaningless in the absence of evidence, and the local authority must prove its case. The substantive merits were not determined.
4. The apparent lack of a placement order in proper form might have resulted from the missing documents or administrative error; if the latter, it required investigation or rectification. Ryder LJ also expressed the provisional view that the cultural significance of the Hindu naming ceremony had not been understood and that criticism based on it could not be a sufficiently significant factor in removing the children for adoption.

The hearing was directed to be expedited before three judges, including a judge with family experience. Any application to adduce further evidence had to be made formally and on notice.

• Court of Appeal (Civil Division): On 1 August 2014, the permission applications were adjourned to a full court, with a stay on placement pending the expedited hearing. The judgment is reported at [2014] EWCA Civ 1133.
• Family Court sitting at Watford: District Judge Mellanby made care and placement orders concerning J on 13 November 2013. HHJ Waller dismissed the parents’ appeals on 1 April 2014. Parker J made care and placement orders concerning the younger child on 23 May 2014.