SW and KSW & Ors

Judgment

Lord Justice Wall:

Introduction

I have found listening to this appeal a dispiriting experience. I will, in a moment, explain why that is. I hasten at the outset, however, to record that my sense of dismay has little to do with the judge at first instance, whose decision is challenged and who, it seems to me on a full reading of the documents, has done more than his competent best to keep an otherwise ill-managed case on the road.

At the same time, I do not wish to be unfair, and I am the first to acknowledge that, viewed through the prism of this court, a care case pending in the county court can look quite different to the way in which it presents on the ground. I propose, accordingly, to use this judgment in part as a means of reminding the profession of matters, which at least at first blush, appear not to have been given the attention in the court below which they deserved.

I should, however, make it clear at the outset that, although I would give permission to appeal, I have come to the conclusion that the appeal itself must be dismissed, and that, despite the deficiencies which I shall attempt to identify, the judge in my view was entitled to reach the conclusions which he did, and that his exercise of discretion cannot by any stretch of the imagination be designated plainly wrong.

My dissatisfaction arises from the following features of the case: -

(1) the fact that the appellant (as a party to the care proceedings from which the appeal comes) had to face serious allegations of sexual abuse (the rape of his step daughter then aged 14) without legal representation or advice;

(2) the fact that although the appellant’s application for permission to appeal on some grounds was listed by Holman J on 24 March 2009, with the appeal to follow if permission was granted, the appellant did not qualify for legal aid for this appeal, and was represented by a McKenzie friend (who conducted his case well and in relation to whom I have no criticism);

(3) the fact that this court has on numerous occasions given careful guidance on case management where there are concurrent criminal and care proceedings. No substantive notice appears to have been taken of that guidance in the instant case, despite the fact that the case comes from a court centre which combines serious criminal and care cases in the same building;

(4) the fact that we have in court a mass of documents (which, in an attempt to marshal into some form of coherent order I reduced to some