A (Children)

LORD JUSTICE WALL: This is a renewed application by a guardian in care proceedings for permission to appeal against an order made by His Honour Judge Brunning on 4 April 2005. The case involved a child, K; and the issue in the case was not so much where K should live or with whom, but the nature and structure of the order to be made in relation to him. The judge made a residence order in favour of K's father with a supervision order to the local authority - the Leicester City Council.

The guardian complains that in so doing the judge took the matter far too quickly, and although there was effective agreement between the parties as to K's placement, nonetheless there were several points which the guardian wished to make in relation to K's history and the capacity of his father to care for him, all of which would have gone to the making of a care order rather than a supervision order. The complaints made in the grounds of appeal are first, that the judge did not hear from the guardian in person at the final hearing; and secondly, that he did not take into account the guardian's views. The guardian, through no fault of her own, had not prepared a report for the hearing. She was, however, both I think present and represented. The judge certainly heard submissions on her behalf. However the guardian says that not hearing from her in person constitutes a significant procedural error and a breach of Article 6, especially in the absence of a written report and especially given the guardian's long involvement with the family.

The second criticism made of the judge is that he did not address the welfare checklist, and did not give clear reasons for his failure to agree with the guardian; and did not give clear reasons for disagreeing, if he was doing so, with a report from a psychologist, Dr French, who had not been required to attend the hearing. There is no reference to Dr French in the judge's judgment. These all amount, the guardian says, to serious procedural errors which render the judgment flawed.

When the matter same before Ward LJ on the papers on 18 May 2005 he refused permission on the grounds that the judge himself, like the guardian, had a very long experience of the case, had heard argument from the guardian's solicitors and although his reasons were not elaborately expressed they were perfectly clear.

The application is renewed this afternoon by Mr Tyler, and we have decided that it raises a point of sufficient interest to warrant a full hearing before the court. We have come to the view, however, that it would not be appropriate to give outright permission at this stage, but to list the application for permission on notice to the local authority and to the child's father with appeal to follow if permission is granted. That will enable all issues to be argued and if Mr Tyler is able to persuade this court that the guardian has an arguable case the court will go on to hear the appeal. We think the time estimate should be two hours. We also think that, if possible, the case should be heard by a three-judge court, but, if not, it should be heard by a two-judge court, one of whom should have Family Division experience. We already have a fairly full and helpful skeleton from Mr Tyler and no doubt the other documents will come into play in due course.

MRS JUSTICE BLACK: I agree.