C (Children)

This is an application for permission brought by Mr Tolson QC on behalf of the mother, who suffered a reverse at the trial before HHJ Vincent in Truro on 23 March when he granted the local authority’s application for care order and went on to make a placement order under the Adoption Act 2002. The Notice of Appeal was lodged promptly in this court and Wilson LJ looked at the case on the papers. He perceived that this was a case in which the judge had gone against the recommendation of the children’s guardian. It was a case in which the dominant expert, Dr Hibbert, had changed his mind about the mother’s prospects as a sole carer in the community at a late stage in a 12-week residential assessment in a unit which Dr Hibbert runs. Accordingly, Wilson LJ directed an oral hearing on notice with appeal to follow and he fixed it for today with a three-hour time estimate.

There were interlocutory issues disputed which I need not refer to since they were settled by Wilson LJ at a hearing on 24 April, when he confirmed that mother and children should remain where they were, namely in a specialist foster family in North Devon. In the run-up to the trial, the court has been deluged with a completely indigestible surfeit of material, including an attempt to inflict on the members of the court 12 trial bundles. We have already dealt with the repeated disregard of Part 52 of the CPR and the Practice Direction, but at least within this huge deluge there was one diamond, namely a medical report from Dr Metcalfe which was not made available to the mother’s solicitors until 4 May and faxed to this court after close of business on that day. Dr Metcalfe is the doctor who has medical responsibility for the mother’s mental health and it is obvious, with the huge advantage of hindsight, that he was a crucial witness at the Truro trial. Why he was not called does not require further investigation. The fact is that he was absent. The fact is that his subsequent report demonstrates how vital was his contribution and/or the surprising recovery of the mother in the brief period since the trial.

Mr Stephen Wildblood QC, for the local authority, has entirely realistically submitted that this is the appellant’s only trump, but equally realistically recognised that it is an ace of the suit. So he has not effectively resisted the inevitable progress towards retrial.

The guardian is represented by Ms Searle, who is entirely supportive of the mother’s case. The father, who is here in person, is equally supportive, as too is the third respondent, the maternal grandmother, who has filed a skeleton. It is impossible for her to go beyond a written skeleton because she is a publicly-funded litigant and her certificate is limited to written representations in the appeal.

It is unnecessary to say more about Dr Metcalfe than that his evidence casts a completely different light on the lethargy demonstrated by the mother during her residential assessment under Dr Hibbert. The judge regarded the mother’s lethargy as an important, if not the most important, ingredient in his conclusion that she could not cope. Plainly, he might have reached a different conclusion had he had the advantage of Dr Metcalfe. Absolutely no criticism can be mounted against the extremely careful judgment delivered by HHJ Vincent. This application and the consequential appeal succeed solely on the evidence of Dr Metcalfe. In itself it is sufficient for success. Mr Tolson had a number of additional points which are much disputed by Mr Wildblood. We have not heard argument on any of the additional points and it is unnecessary for us to express any view about them.

The only other thing I would say is that although Dr Metcalfe casts a fundamentally new light on the mother’s condition and prognosis, the outcome of a retrial remains unpredictable. There are obviously continuing question marks, despite Dr Metcalfe’s validation, and within his report itself he does point to the mother’s need to accept alternative anti-psychotic medication, which she is not accepting at present. There is a question as to what will be the duration of the retrial and Mr Wildblood has, I think, sensibly suggested that some compression is possible, in the light of the fact that it will be a rerun and there will be a transcript of the evidence given first time round. Nonetheless, it is always wise to be cautious in estimating the length of proceedings that are as important for the mother and the children as these.

The question of venue will have to be settled by Coleridge J and the parties. Equally directions in relation to retrial will have to be settled by the ultimately identified judge, unless agreed between the parties.

All that said, our fundamental order will be to grant permission to allow the appeal and to order an expedited retrial.

I agree.

I agree.