P (A Child)

Hearing date : 16th January 2008

This is an application by the mother of a female child born on 7 May 2006 for permission to appeal against care and placement orders made by Her Honour Judge Butler sitting in the Nottingham County Court on 29 August 2007. Although this judgment is a public document, and although in due course there may be an application for the child and her mother to be identified, I have, for the time being and with the applicant's agreement, imposed reporting restrictions. Nothing must therefore be published which would identify the child or her mother; and I propose in this judgment to refer to the child as KP and to her mother as “the applicant”.

KP was born prematurely on 7 May 2006, and remained in hospital. As the judge stated – and this does not appear to be in dispute—KP “has very many serious medical conditions with which to contend” and requires skilled day to day care and management. Care proceedings in relation to her were instituted in September 2006, and on 23 November 2006, pursuant to an interim care order, she was discharged from hospital into the care of foster parents, with whom she has remained. She has thus never been in the sole care of the applicant.

The judge's judgment, which is extremely short, refers to the fact that assessments had been undertaken by the local authority of the applicant herself, and of various members of the applicant's family. None was, however, deemed capable of caring for KP, whose father does not appear to play any part in the proceedings.

In the care proceedings, the judge found the threshold criteria under section 31 of the Children Act 1989 (the 1989 Act) were satisfied, and concluded that it would be in KP's best interests for a care order to be made in favour of the local authority. The local authority's care plan was for adoption, although given the likely difficulties in finding adoptive parents for a child with KP's disabilities, the local authority envisaged that she would, for the time being, remain with her present foster carers. However, the local authority also issued proceedings under the Adoption and Children Act 2002 the 2002 Act), seeking a placement order under section 21. These proceedings were consolidated with the care proceedings, and heard together by the judge.

The applicant was represented before the judge in both the care and the placement proceedings by the Official Solicitor, who did not oppose the making of the care order, and accepted on the applicant's behalf that she was not capable of giving consent to the making of a placement order in relation to KP. The order of the court thus records (in this particular respect, in my judgment, inaccurately) that the care and placement orders were made by consent; it goes on to record (accurately) that the applicant's consent to the placement order was dispensed with under section 52(1)(a) of the 2002 Act, the court being satisfied that she was incapable of giving consent to the placement order.

The applicant seeks permission to appeal on the ground that her rights under ECHR Article 6 have been breached, and that she did not have a fair trial. In her skeleton argument produced for the hearing before me on 16 January 2008, the applicant, who was in person, wrote: -

I was not allowed to speak at the final hearing to refute any claims made against myself or to provide evidence to support my case, the case was very short and I was basically a spectator. I wanted to present a case & still wish to do so.

My legal representative was changed or 'ordered' to take instructions from an official solicitor (sic), this was based on a psychological report by (HJ). I wish to refute this report in any further granted case I also intend to get my own evaluation report done, as I didn't have an opportunity to refute the report before, as this very report crippled my case and this stopped me from defending myself or instructing my legal team to do so, which stopped me having a “fair trial” which is a human right as specified under Article 6 of the HRA ( Human Rights Act)

Parties in the case gave misleading, exaggerated facts and lies in their reports knowingly, these reports were used as evidence & I did not get the chance to refuted (sic) these during the final hearing, and I wish to argue that point at any new hearing.

Social Services offered very little or not support in an effort to keep (KP) with her family & I intend to argue that point at any new hearing.

I have been refused access to paperwork by my solicitor, which also has hindered my defence.

HJ is a consultant clinical psychologist. On 19 September 2006, the parties to the care proceedings were given permission by the district judge to disclose the case papers to HJ in order for her to prepare a report upon the applicant's competence to instruct her solicitor. According to the order, the applicant's solicitor was to act as the lead solicitor, and a joint letter of instruction was to be filed by 26 September. HJ's report was to be filed by 27 October 2006.

HJ duly interviewed the applicant and reported on 23 October 2006. Her conclusion, expressed in paragraph 3.1 of her report, was in the following terms: -

Because of the difficulties (the applicant) has in understanding, processing and recalling information, I believe that she will find it very difficult to understand the advice given by her solicitor. She will not be able to make informed decisions on the basis of this advice, particularly when this involves anticipating possible outcomes. It would be appropriate for the Official Solicitor to become involved.

On 7 November 2006, the district judge, in the care proceedings, directed that the documentation in the case be released to the Official Solicitor, and the Official Solicitor be invited to act on behalf of the applicant. On the same occasion, the district judge gave the parties permission to seek a psychiatric report on the applicant from a consultant psychiatrist, Dr. O, with once again the applicant's solicitors taking the lead and a joint letter of instruction being filed. Dr. O responded by letter on 13 December 2006.

The Official Solicitor filed his consent to act in the care proceedings on 6 December 2006, and on 19 December 2006, the district judge gave further directions in those proceedings. These related in particular to propose teaching methods to be implemented in the parenting assessment of the applicant. Amongst other directions however, the Official Solicitor was ordered to file his statement by 4.00pm on 4 May 2007. The care proceedings were then listed for final hearing on 30 May 2007, with a time estimate of three days.

On 24 April 2007, the final hearing fixed for May 2007 was vacated, and an order made for consolidation of the care proceedings with...