Case No: B4/2012/3187
Neutral Citation Number: [2013] EWCA Civ 330
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY
FAMILY DIVISION
(HER HONOUR JUDGE HUGHES QC)
 
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday, 14th March 2013
Before:

LORD JUSTICE McFARLANE

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IN THE MATTER OF G (a Child)

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(DAR Transcript of 
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The Appellant mother appeared in person.
The Respondents did not attend and were not represented.

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Judgment
Lord Justice McFarlane:

1.	This is an application for permission to appeal made by notice dated 5 December 2012 by a mother of a young child whose first name begins with the initial J, a boy born on 3 May 2004 and therefore now fast approaching his ninth birthday.  J is currently the subject of a care order.  The care order was made at the Inner London and City Family Proceedings Court by District Judge Tempia on 30 April 2012.  The mother, then represented by solicitors and counsel, sought to appeal that order, and the appeal came on promptly before HHJ Hughes sitting in the Principal Registry of the Family Division on 23 July 2012.  The appeal was unsuccessful and HHJ Hughes dismissed it.  The mother now by her notice, which comes in some months after the event, seeks permission for a second appeal against the determination of HHJ Hughes and obviously by implication against the primary decision of District Judge Tempia.  

2.	I am bound to say that in approaching this oral hearing this morning I was pessimistic of the mother’s prospects of success.  It seemed to me that in terms of the factual background the District Judge conducted a very thorough investigation and analysis of the available evidence and made a number of conclusions which were adverse to the mother and critical of her care.  The mother sought to challenge those findings, and my view on reading the documents was that she had little prospect of success in that regard.  

3.	I am, however, going to grant permission to appeal on a different basis.  It is necessary, therefore, to say only something briefly about the primary basis of attack, the findings of fact, and to explain again briefly why I nevertheless am going to grant permission to appeal.  

4.	The facts that supported the finding of threshold were by no means the most severe that the courts of the family jurisdiction experience.   This was not a case of direct physical or sexual assault on this young child, it was a case that, from time to time, and it was said that on at least two if not three occasions, the mother had absented herself from being in charge of J’s care.  The phrase “abandoned” was used.  But at bottom the allegation was that she could not be relied upon to prioritise his needs over hers, as they may be from time to time.  She is a lady who from her own personality and psychological makeup has particular needs that drive her to act in a particular way on occasions, and young J has been diagnosed as having a presentation which puts him somewhere on the autistic spectrum and so he is a more complicated and challenging child to provide care for than might be the case with some other children, although I suspect he in addition may be more interesting and rewarding to care for than some other children.

5.	The judge makes findings in detail on the basis of the factual background that I have described and, as HHJ Hughes found, I also take the view that the mother’s attempts now to go behind those matters and seek to overturn the judge’s findings have no prospect of success on appeal.  The threshold criteria are met, and the focus of my concern today is upon the care order and more particularly the care plan.  

6.	At the time of the hearing before the Family Proceedings Court, J was still seven.  The care plan for him, which is set out in the copy care plan that I have, was to be in long term foster care and never to be rehabilitated to his mother.  And so he was facing a period of something like nine years as a child in foster care despite the fact that the threshold were crossed on the relatively modest basis that I have described and despite the fact that District Judge Tempia in her judgment at page 20 of the transcript gives the mother credit for certain positive steps that she had taken in the lead up to the hearing.  The care plan also provided for regular contact between the mother and J, and the mother tells me today that she has contact with him two times each month for six hours on each occasion.  

7.	That is quite a draconian order to make.  It is not an adoption placement but it places a child for the majority of his childhood in long term foster care.  My concern, and the reason why I am going to grant permission to appeal, is that a reading of the first judgment does not indicate that very much judicial analysis was brought to endorsing the care plan, containing as it did this relatively draconian provision.  It was accepted by the judge, and again in my view this is not open to challenge, that J could not go back to the mother there and then on that day, but it does not follow as night follows day that the care plan should be for years of placement in long term foster care.  And on the judgment of District Judge Tempia in its written form in my view there is insufficient analysis given to the need to have J’s welfare as the paramount consideration in endorsing the care plan and looking at the prospects for some rehabilitation in the future.  HHJ Hughes was alive to that potential deficit in the District Judge’s judgment and at paragraph 4 of her judgment she accepts that the judge does not use words indicating that she has weighed up the details of the pros and cons of the welfare checklist, but HHJ Hughes effectively assumes that the District Judge must have done that from implication in words that she has used.

8.	In my view that may not be good enough.  The analysis by the lower court may not be fit for purpose, and it is, therefore, despite the test that has to be applied in relation to this second appeal, given what we are dealing with here, which is years of this child being in long term foster care, I consider that that is a sufficiently compelling reason to give permission to appeal so that this court can look at the matter in detail.  I have encouraged the mother to seek legal representation for the hearing of the appeal.  She has been legally represented before and I would encourage the Legal Services Board to enlarge legal aid to her.  It would be of enormous benefit to the Court of Appeal for the mother to be represented by experienced counsel who can spot the sorts of points that I have indicated in this short judgment.  It is highly unlikely that a litigant in person is going to be able to argue these sorts of points on behalf of the mother in the way that a seasoned family lawyer would do.  I have therefore encouraged the mother to go today either to her old solicitors or to choose new solicitors and contact them today.  

9.	I am going to direct that the transcript of this judgment is expedited and made available to the mother at the earliest opportunity so that she and her new lawyers can show it to the Legal Services Board in the hope that they hear my plea, which is for them to enlarge legal aid to her so that a proper and thorough hearing can be undertaken.

Order:  Application granted