W & M (Children)

Judgment

Mr Justice Coleridge:

This is in effect an application for permission to appeal with appeal to follow if leave is granted in respect of an order made by HHJ Marston on 31 July 2009 sitting in the Portsmouth County Court. I say ‘in effect’ because Mr Hyde, who appears for the father and the mother this morning, points out the fact that the father has in fact filed a notice of his own by way of a respondent’s notice in which he seeks further time before the appeal is heard, but as I say the reality is that the mother and the father seek to overturn the judge’s decision.

The effect of the order was to refuse the parents’ application for a residential assessment under Section 38(6) of their ability to parent their five children. Although the precise order is silent as to that refusal, that is indeed its effect. HHJ Marston also refused permission to appeal.

This application has been made by the parents in the course of care proceedings which were begun on 9 February 2009, although the children had been received into voluntary care some 11 months earlier. The s.38(6) application was opposed by the local authority and the guardian and they similarly oppose the application for leave today.

The five children who would be the subject of the assessment are A, who is 14, M, who is seven, K ,who is five, N, who is two, and S, who is 19 months.

When adjourning the case to be heard by a full court Wall LJ said this:

“1. I have come to the conclusion that this is an application which should be decided by the full court.

2. On the one hand, the judge was exercising a judicial discretion, and the judgment is both full and careful. On the other hand, there is little doubt that a refusal of the application effectively ends the parents’ case for the return of the children to their care. The case thus raises the dilemma posed by such applications in an acute form.

3. I would not want mother to build up her hopes too much. The court may well take the view that the judge was entitled to reach the decision which he did. It seems to me however, that she should have the opportunity at a full hearing to persuade the court that she has an arguable appeal and that her appeal should succeed.”

This is indeed one of those Section 38(6) cases where the significance of the order is very considerable, but, I would venture to suggest, not in fact in itself necessarily determinative of the whole of the main application.

The judgment leading to the making of the order is