This is the application of Miss P, a mother, for permission to appeal and a stay of execution in respect of the decisions of HHJ Mitchell in Nottingham County Court on 7 August 2008. On that date the judge refused the mother’s application under section 24 of the Adoption and Children Act 2002 for leave to apply to revoke the placement order made in respect of her child, K, aged two years and five months, that order having been made by HHJ Butler QC on 29 August 2007. The mother sought permission to appeal that decision on the day of the hearing but permission was refused.

There is a considerable procedural history to this case, which can be summarised in this way: K was born on 7 May 2006. She was born prematurely and remained in hospital. She had many serious medical conditions with which to contend and required skilled day-to-day care and management. Care proceedings were instituted in relation to her in September 2006 and on 23 November 2006, pursuant to an interim care order, she was discharged from hospital into the care of foster parents with whom she has remained. She has thus never been in the sole care of the mother.

The judgment in the care proceedings was quite a short one, referring to the fact that assessments had been undertaken by the local authority of the mother herself and of various members of her family but none were deemed capable of caring for K, whose father did not play any part in the proceedings. In the care proceedings the judge found the threshold criteria under section 31 of the Children Act 1989 was satisfied and concluded it would be in K’s best interests for a care order to be made in favour of the local authority. The local authority’s care plan was for adoption, although given the likely difficulties in finding adoptive parents for a child with K’s disabilities, the local authority envisaged that she would for the time being remain with her present foster carers. However, the local authority also issued proceedings under the Adoption and Children Act 2002 seeking a placement order under section 21, and the proceedings were consolidated with the care proceedings and heard together by the judge.

At that time the mother was represented before the judge in both the care and placement proceedings by the Official Solicitor, who did not oppose the making of the care order and accepted on the applicant’s behalf that she was not capable of giving consent to the making of a placement order in relation to K. It was because of that element of absence of dispute as to the ultimate decision that the judgment was relatively short. The order of the court recorded that the mother’s consent to the placement order was dispensed with under section 52(1)(a) of the 2002 Act, the court being satisfied that she was incapable of giving consent to the placement order. The Official Solicitor’s statement in both sets of proceedings, dated 17 August 2007, stated that it was the mother’s position that she had shown a commitment to contact and that there was a close and loving bond between her and her daughter, and if she was unable to care for K she would like to have continuing direct contact with her. The mother had commented on the position taken by the other parties and felt that the local authority had not given her a chance to acquire the skills necessary to provide care to her daughter. The mother felt that she should have the right to a family life and that if K were to reside in her care then there would be no risk of significant harm to K.

Having considered all the evidence, however, the Official Solicitor, in the exercise of what he described as his duty to conduct the case on the applicant’s behalf and in her best interests, concluded that the threshold criteria under section 31 of the 1989 Act were satisfied, but he could not oppose a care order being made in relation to K; that the mother was not in a position to consent or refuse consent for a placement order; and that he could not oppose the local authority’s application for such an order. The state of evidence as to the mother’s ability to care for K in the care proceedings, and upon which the judge plainly relied, included a report of 8 June 2007 from the local children’s resource centre, which expressed its inability to be sure that the mother would retain or understand information given to her at all times and concluded:

The local authority’s core assessment report, dated 11 July 2007, which was a long document, reached a similar conclusion. In the final recommendations it was stated:

In the care proceedings the guardian reached the same conclusion, and in paragraphs 62 and 63 of her report she wrote that, while she acknowledged the high level of commitment shown by the mother to her daughter during the proceedings and was very clear that the mother loved K dearly, the sad fact was that the evidence led to the conclusion that K’s needs could not successfully be met by the mother or by any member of the family. The guardian observed:

The judge’s decision gave rise to an application for leave to appeal to the Court of Appeal, at which the mother herself appeared with a McKenzie Friend, a Mr John Hemming, an MP with a close interest in the conduct of care proceedings who also appeared and spoke on her behalf to argue that:

The Court of Appeal heard the application on 16 January 2008 and delivered judgment on 30 January. It held that the evidence in the care proceedings was overwhelmingly in favour of care and placement orders. It was right for the Official Solicitor acting for the mother to concede that the threshold criteria under section 31 of the 1980 Act were satisfied and that the care order was in KP’s best interest. He was equally right to accept the psychiatric advice that the mother was not in a position to give an informed consent to a placement order. It was said that the judge was plainly right to make the care and placement orders, they being plainly in the interests of K. It followed that the mother’s rights under ECHR Article 6 had not been breached and that the orders made were right and inevitable on the situation which had been before HHJ Butler.

That decision was subsequently the subject of a petition for leave to appeal to the House of Lords, which petition was rejected, the House stating that no matter of law arose which required investigation; and that being so the judgment of the Court of Appeal, which is a very long one and from which I do not propose to read further, is as it were the last word on the fairness and propriety of the care proceedings and the adequacy of the evidence upon which the judge made her order. Meanwhile on 29 October 2007 the mother had issued an application in person, not it may be noted by the Official Solicitor, for revocation of the placement order. The mother’s position was that she was fit and had the requisite capacity to appear for herself with the help of a litigation friend. She also asserted that circumstances had materially changed since August 2007 when HHJ Butler made the care and placement order. Such change of circumstances is of course a necessary pre-condition to the court having jurisdiction to revoke a placement order on the application of a person other than a local authority. Various directions were made on 5 December 2007 and 2 January 2008 to bring the matter on before HHJ Jenkins on 11 February 2008, both to rule on the question of the mother’s capacity on the basis of evidence from a psychologist, Dr Helen James, and to hear the application, including an application by Andrew Pullen, the brother of the mother, who has accompanied her on this application, to replace the Official Solicitor as the mother’s litigation friend, and any further directions which might appear to be appropriate in the light of the Court of Appeal decision.

That hearing in turn had to be adjourned and on 13 June 2008 HHJ Mitchell ordered that the application to discharge the placement order should be listed for directions/a disposal hearing on 7 August 2008. On that day the issues which it had been anticipated might take time to resolve as to the capacity of the mother were in fact bypassed without a formal ruling, and the substantive issue of the application was dealt with on the basis which was recited in the ensuing order, which read as follows:

The mother’s application is for permission to appeal that order on a number of grounds, to which I will turn in a moment. The question of the mother’s capacity to act for herself in the proceedings rather than through the Official Solicitor as her litigation friend was a matter rightly to be considered by the judge because it has loomed large in these proceedings throughout. It was the main complaint of the mother in her appeal to the Court of Appeal that in the proceedings leading up to the making of the care order she had been represented by the Official Solicitor, who had not fought her corner effectively, and it was the mother’s case advanced before the Court of Appeal and maintained before Judge Mitchell that she had and has the necessary capacity not only to conduct her own proceedings with the help of a litigation friend but, with appropriate assistance, also to parent K, her child. In the event the judge came to the decision on the basis of the material available to him, and the agreement of the parties, that what was needed was a disposition of the application on the basis of the change of circumstances advanced rather than what the judge called in his judgment and was recited in the order “satellite litigation” as to the mother’s capacity to represent herself with help from a litigation friend.

There was before the judge a very clear and articulate position statement advanced by the mother, and it is apparent that she and Mr Andrew Pullen, as her litigation friend, were well able to conduct the proceedings before the judge. Certainly they take no point on this application that there should have been representation by the Official Solicitor or by anybody else. In that statement, having dealt at length with the history of the matter, the mother stated that on the day following the hearing of the evidence in the final hearing -- that is to say 29 August 2007 -- she moved into a flat located on Cranwell Road in the Strelley area of Nottingham where, she said:

She said she had decided that she would for future hearings and appeals do them herself even though she knew that she might be nervous in court having to speak in front of everyone, and although it might be a disadvantage she felt it was the only way she could achieve justice. She stated that she applied for a discharge hearing because the social services managed to get an ICO by saying that she could not copy with K’s complex health needs. K was oxygen dependent at the time the original ICO was applied for and granted, but since being in foster care K no longer required oxygen and her health had improved.

Before the judge the mother advanced a number of grounds which were indeed set out in writing, and she produced before the judge a written Change in Circumstances, upon which she relied. I say in parenthesis I have some difficulty in reading these because of the quality of the photocopy, but they were as follows:

Under paragraph 3 there is a head which appears to indicate that she has maintained contact satisfactorily. I say that because I cannot read the writing entirely.

I have already mentioned that there were references to various documents relied on in support of the points made. The points upon which the mother relied which were picked up before the judge as being of particular importance were an assertion of her own established independence and ability to cope with the everyday incidents of life and the overall improvement in K’s health and knowledge of her mother.

The position statements of the local authority and the Official Solicitor dated 20 and 27 December 2007 respectively were brief and neither were directed to the detailed issues which I have recounted. That of the Official Solicitor was largely directed to the question of capacity, and that of the local authority listed the various assessments and reports leading up to the original care order, but the statement was of an interim nature directed towards what was to be done about hearing the appeal and the representation of the mother rather than dealing in terms with the change of circumstances advanced by the mother. However, at the hearing a number of documents were produced in support of the mother’s claim and the judge had access to the relevant bundles of documents in the case.

The mother put her Changes of Circumstances under the various headings which I have mentioned and the judge, having considered the matter and received the submissions of the parties, in the event refused leave on the grounds that, in the overall context and history and the underlying factual basis of the care proceedings upon which basis the care order had been made and upheld in the Court of Appeal, such change in circumstances as had taken place in relation to the improvement in K’s health and the development of the mother’s relationship with her did not justify the grant of leave. In his judgment the judge rightly adverted to the considerations to be applied on an application for leave under section 24(3), as considered in the case of Warwickshire County Council v M [2007] EWCA Civ 1084, and conducted a proper exercise in relation to her discretion in coming to her conclusion.

The judge considered the change of circumstances and the extent to which there had been a material change, bearing in mind the basis of the decision which was sought to be re-opened. In this respect, of course, the statute does not provide, in terms, the quality or nature of the change which is required to obtain leave, but it is clear that one must have regard to the basis of and reasons for the earlier decision when deciding whether the nature and degree of the change of circumstance relied on is sufficient to justify re-opening the event on the basis of what has, on the face of it, been a final disposition. Upon the change of circumstances and then materiality the judge said this:

The judge then proceeded to consider whether, to the extent that a material change was demonstrated, leave should in fact be granted, having regard both to the welfare of the child and the existence of any real chance or likelihood of success if leave were granted. In that respect the judge said this:

A number of grounds of appeal have been advanced on this application, and emphasis has not unnaturally been given by the mother to a variety of respects in which the position has changed so far as various matters are concerned since the hearing of the care proceedings. At this stage I will itemise them. So far as the changes in circumstance are concerned, she underlines the question of her own health and relies upon the fact that the local authority have admitted that K’s health has improved significantly and expresses mystification, as it were, that at the same time as making their submissions to the judge the local authority claimed that a change in K’s health was not a change on which the judge should rely or concentrate; and in that respect it is important to emphasise that the thrust of the case when it was decided at the stage of the care proceedings was not simply the seriousness of K’s condition, which undoubtedly had improved since the time when an interim care order was first made over the period up to the making of the care order, and was indeed continuing to improve from that date. The thrust of the concern was that while that health might have been improving it nonetheless gave rise to ongoing concerns about the necessity for anyone with the care of K to be capable of dealing with a wide variety of health difficulties from which K was likely to suffer for the foreseeable future, and in arguing the matter before the judge below this was an aspect which the local authority emphasised, so that the question of the improvement in K’s health was not in itself a matter definitive of the question of whether there should be a change of circumstance when the overall circumstance on which the local authority were relying was the apparent ability of the mother herself to deal with the questions which would arise and be necessary to be attended to over the years when caring for K.

The next matter which is relied on is the question of the mother’s accommodation and her independent living. Again it was not in dispute before the judge below that the mother’s position in this respect had changed, but the question made by the local authority and presented to the judge on the application was the question whether that in itself gave rise to a situation which met the gravamen of the local authority’s concerns. It is plain that the judge, who did not deal with this aspect in his judgment, did not consider it a material matter in the same way as those questions going to the health of K, and her relationship with her mother and the ability of the mother to cope with those health concerns. There is also reference to the question of capacity, and various points are made about the adequate way in which the mother had represented herself in the Court of Appeal. The assertion is made that she had sufficient capacity to conduct her own case. That was the point on which the judge, in effect, himself relied in permitting her to deal with the matter and bypassing the possible concerns expressed by the Official Solicitor, and does not seem to me a matter of significance on this appeal.

The next change of circumstances to which the mother adverts under the heading “Childcare” is the question of her parenting skills and the assertion that those parenting skills have improved, and a complaint that the local authority chose to use old assessments to support their assertion that they had not improved or at any rate had not improved sufficiently significantly to affect the position. Again the question is really one of degree, and there was a good deal of evidence before the judge in the form of the assessments and other reports to indicate that the real difficulty for the mother was less perhaps mechanical skills of parenting but the appreciation of the priorities of the child, the nuances of her condition and the ability to supply her on a long-term and full-time basis with the proper level of care. She relied upon the question of household conditions, it having formerly been claimed apparently in the care proceedings that her home was unclean and unhygienic. But it is not apparent that that was a matter on which the local authority were relying before the judge or to which he attached any significance. The point was made of the change in relationship with Mr Rose. Again it is not apparent that that was a matter which had assumed significance before the judge.

She relies upon the fact, as she states, that she has a support network in the form of her family but again that is a matter which was considered by the judge and it was inherent in the evidence which he had before him that those members of the family who were advanced as having a contribution to make in this respect had not been assessed as appropriate. There is a heading also about concern about safety and no pets. Again this was not apparently a matter to which great significance was attached before the judge. The more significant heading, and one to which the judge plainly did advert, was the question of attachment, and the assertion that K was becoming aware who the mother was and was establishing a relationship with her, showing recognition and pleasure in her company. The point is made that an attachment break at this point in her life would cause irreversible damage since as the mother says, “She now calls me mummy and is very attached to me.”

This was, of course, a point which the judge had to consider and was a point taken into account, no doubt under the heading of “welfare of the child”. The judge was himself concerned with issues of attachment in the sense that that was one of the matters which to him at any rate, in the exercise of his discretion and on the basis of the evidence before him, indicated a need for speed in relation to the placement for adoption rather than as a reason to withhold the making of such an order, and the possibility of entrusting the child to the mother in circumstances where the preponderance of evidence plainly accepted by him was that the mother was not capable of providing for the child’s long-term care and needs. One of the points which has caused us a little concern on this appeal is the fact that with notice of the change of circumstances upon which the mother was relying and on the basis that the local authority itself was relying, and relying quite heavily, upon the inability of the mother to provide for the long term needs of K, there was not an up-to-date medical report provided before the judge to substantiate what was the thrust of the local authority’s submission, namely that the medical condition of the child while improving over the period would remain one in relation to which, essentially, the level of care to be provided by the mother would be inadequate.

However, the counsel for the local authority has drawn to our attention a recent medical report which, had it been in existence, should certainly have been before the judge. It reviews K’s condition, taking a look into the future. It sets out at some length the history of all the previous reports of doctors, a number of which were in any event before the judge and under the heading “Implications for the future” in two sections of the report, says this, page 5:

Then on page 6 it is stated:

For my part I venture to think that, had that report been before the judge, as I think some report should have been on the question of medical condition, it would have confirmed rather than disturbed his long-term view as to the validity of the concerns of the local authority at the level of care which would be available to K if she were re-entrusted to the care of the mother. In those circumstances, in my view there is nothing upon the face of the judgment, or in the submissions, or in the headings to which I have referred, which establishes a reason for this court to overrule the view of the judge and the exercise of his discretion. It has been suggested that in various respects, largely the despatch with which he proceeded with the matter, the mother was placed at a disadvantage and that there was possible or actual breach of her Article 6 rights in relation to the trial of the matter, but on everything I have heard and seen, including the submissions of counsel for the local authority, I see no substance in those allegations, and in all the circumstances I would dismiss this application.

I agree. Like my Lord I think it most unfortunate that the local authority did not put fresh evidence before the judge. It would not have been difficult to have presented an updated medical report or social work report or investigation restating the local authority’s position that the mother was not able to care for KP full-time. The opportunity could also have been taken, as my Lord has indicated, to update the court on KP’s health. Had this been done, I think it likely, given the history of the case, that permission to appeal might well have been refused without the need to summon the local authority to the court as we have done this afternoon. Furthermore I think it would have been easier for the mother to understand why it was that the local authority was taking the stance it did and why, in their view, KP could not return to her care. I think we need to remember that we are dealing with adoption, which as we all know is one of the most emotive topics that there is both for parents and everybody else.

All that said, however, I have come to the view, having considered the matter carefully, that the judge was entitled on the material available to him to reach the conclusion that he did, and like my Lord I would refuse permission to appeal.