O (A Child), Re

Lord Justice Thorpe:

In September last, HHJ Hernandez in the Manchester County Court had a very difficult and finely balanced case in his list for final hearing. He had to determine the future for Jayden-Lee, the younger brother of Joshua. Jayden-Lee was 11 months of age and Joshua was three-and-a-half. The mother of these two boys, Julie, was party to the proceedings. She had not been able to care for Joshua, and effectively on the first day of the trial it was accepted that she could not offer a good enough future for Jayden-Lee. She was represented by experienced counsel, Miss Heppenstall, who thereafter sought to advance the alternative family placement with the maternal aunt and her partner. They had taken responsibility for Joshua and had done extraordinarily well with him, so the most obvious possibility was to give them the opportunity to provide the same enormous benefits to Jayden-Lee as they were providing to Joshua.

Now, that was an option that had been in the minds of all the professionals from the outset. Indeed, the local authority had embarked upon a viability assessment in-house, which, sadly for Mr Whitaker and Miss Owen, resulted in a negative conclusion. That assessment had been ordered in November 2007 and it became available in February 2008. The assessment was disclosed to Mr Whitaker and Miss Owen and they were advised, at an interlocutory hearing on 12 March, to seek legal advice. That was hardly practicable since they are not eligible for public funding on financial grounds, but they are in that trap that equally they are unable to afford private instruction. So there was no reality in telling them to go and get legal advice.

However, going it alone in April at a further interlocutory hearing, they indicated to the judge that they did not accept the local authority’s in-house viability assessment and, accordingly, with the assistance of the guardian, an order was made for a second viability assessment by Miss Harris, an independent social worker. Her report was available on 8 July but was not transmitted to Mr Whitaker and Miss Owen until 15 August. They were required to digest its contents and signify their position to the court, which they did on 29 August, and the signal was that they intended to contest the evidence of Miss Harris. All that was perilously close to the time of the hearing, listed to commence on 1 September for five days.

The challenge was therefore mounted largely by Mr Whitaker, who attended throughout, Mi