F (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson,Lord Justice Rimer,Lord Justice Pill |
| Judgment Date | 31 January 2011 |
| Neutral Citation | [2011] EWCA Civ 258 |
| Docket Number | Case No: B4/2010/2433 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 January 2011 |
[2011] EWCA Civ 258
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHESTER COUNTY COURT
(His Honour Judge Kevin Barnett)
Before: Lord Justice Pill
Lord Justice Wilson and
Lord Justice Rimer
Case No: B4/2010/2433
Lower Court No: CH10C00604
Mr Clive Heaton QC and Mr Bansa Singh Hayer (instructed by their legal department) appeared on behalf of the Appellant Local Authority
Mr Anthony Hayden QC and Miss Lorraine Cavanagh (instructed by Hibberts, Crewe) appeared on behalf of the Respondent Mother.
Mr Anthony Hayden QC and Mr Karl Rowley (instructed by Poole Alcock LLP, Crewe) appeared on behalf of the Respondent Father.
Lord Justice Wilson:
Cheshire East Borough Council ("the local authority") appeal against an order made by His Honour Judge Barnett in the Chester County Court on 16 July 2010 by which he dismissed their application for a care order in respect of a child. Apparently of his own motion the judge granted the local authority permission to appeal.
The local authority do not seek to persuade us to allow the appeal. They concede, in my view inevitably, that decisions of the House of Lords and of the Supreme Court, being binding on this court, require it to dismiss the appeal. Accordingly I propose that we should dismiss it. The purpose behind the local authority's doomed appeal to this court is to put them in a position whereby, if they are permitted to do so, they can appeal against our decision to the Supreme Court and can try to persuade the Supreme Court to modify the law stated in previous decisions in such a way as to lead it to allow the appeal against our order and to set aside the judge's dismissal of the application for a care order. Thus the argument put before us today has related to the application, which rightly they first make to this court, for permission to appeal to the Supreme Court.
In the light of the limited issue for our consideration today the child, by his Children's Guardian, has not been represented at it. A skeleton argument has, however, been filed on his behalf by which the guardian expresses her support for the local authority's application for permission to appeal to the Supreme Court. Thus the shape of the oral hearing today has been one of short submissions by Mr Heaton QC on behalf of the local authority in support of the application for permission and of equally short submissions by Mr Hayden QC on behalf of the parents, who express neutrality in relation to the application for permission.
By this judgment I will express the reasons for my view that we should refuse the local authority's application for permission to appeal.
The child at the centre of the proceedings is a boy, C, who was born on 27 June 2010. His parents are engaged to be married and they live together. Early in the pregnancy the parents notified the local authority of it and they referred the local authority to the existence of care proceedings in 2004 to which the father had been a party and in which he had been the subject of certain findings to which I will refer. The local authority conducted a pre-birth assessment and determined that, in the light of findings in the previous proceedings, they should apply for an interim care order in relation to the child, once born, on a plan that he should reside with the mother only if the father were to leave the family home and to undergo a risk assessment. When the parents indicated that such a plan was not acceptable to them, the local authority issued their application for a care order within a day, or at most two days, of the birth and they sought an immediate hearing of their application for an interim care order to be made on the plan to which I have referred.
What then happened shows that, at any rate in the Chester County Court, the family justice system is still working extremely well. The judge was able to conduct a substantial hearing as early as 30 June 2010, i.e. only three days after C's birth. Counsel, publicly funded, were instructed to appear for each of the parents. A guardian was in place on behalf of C and a solicitor appeared for him acting by her. It is clear that the judge received legal submissions of high quality on all sides. At the end of the hearing he announced his decision, namely that he would dismiss the application for a care order, but he reserved his judgment. Only 16 days later he handed down what, if I may say so, was an immaculate written judgment.
The local authority contended, of course, that there were reasonable grounds for believing that circumstances with respect to C were as mentioned in s.31(2) of the Children Act 1989: see section 38(2). Of course they did not contend that there were reasonable grounds for believing that C had suffered or was suffering significant harm within the meaning of s.31(2)(a). They contended that there were reasonable grounds for believing that he was likely to suffer significant harm within the meaning of that subsection. In that regard they referred only to the proceedings in 2004 to which the father had been a party.
The earlier proceedings had taken place in the Stoke County Court and had related to a boy, J, who in October 2003 had been born to the father by a different woman. The proceedings had resulted in the making of a care order in relation to J on a plan that he should reside with the father's parents and have contact with the father under their supervision. It seems that that plan remains operative.
In the course of those proceedings His Honour Judge Orrell had considered two fractures of the right leg which J had sustained on separate occasions in April 2004, i.e. when aged six months. The judge had found that he had sustained both of them non-accidentally but he was not able to identify the perpetrator of either of them. He had found only that the perpetrator was either the father or J's mother and so he consigned both of them to a pool of possible perpetrators. In relation to the second fracture he had indicated that he regarded J's mother as somewhat more likely than the father to have been its perpetrator. In relation to that fracture he had also found that whichever parent had not been the perpetrator had failed to protect J.
Such were the findings laid before the court on 30 June 2010 as material by which the threshold for the making of an interim care order referable to C was crossed. The judge held that he was bound to conclude that the material did not enable the threshold to be crossed, as a result of which he dismissed the application for a care order.
The local authority did...
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