(Court of Appeal, Black LJ, 30 July 2013)
The mother had been unable to care for the now one-year-old child in a mother and baby placement and he had since remained in foster care. The father had not cared for the child and had only supervised contact but he was initially granted a residence order with a supervision order in favour of the local authority despite the judge making a number of detrimental findings against the father. The local authority appealed.
At the appeal hearing the local authority and guardian were legally represented but the father appeared in person as non-means tested non-merits legal aid was not available for appeals from care and placement orders. The father's solicitors sought an adjournment while legal aid options were investigated but the judge informed them that an application would need to be made at court. The father appeared unrepresented and did not seek an adjournment. The local authority's appeal was allowed and care and placement orders were granted.
The father was granted permission to appeal. There was an issue of fairness of the process on appeal to the circuit judge as the father was represented on public funding at first instance and succeeded. He was then an involuntary part of the local authority's appeal and he had to respond to it; he had to do so without representation. That gave rise to questions about fairness of process when the potential consequence - the actual consequence as it turned out - of the appeal was the permanent severance of the child from the father's family and the father, by means of care and placement orders.
It was also questionable whether the circuit judge paid sufficient attention to the district judge's advantage of hearing direct evidence and whether the circuit judge was entitled to overturn the decision and substitute care and placement orders without hearing oral evidence. Further whether the risk that was involved in the father's caring for the child was sufficient for it to be proportionate to make a care and placement order in relation to the child, particularly when the father's care was as yet untested.