England and Wales Court of Appeal (Civil Division) Decisions
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B (Minors) [1997] EWCA Civ 2535 (21st October, 1997)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/1997/2535.html
Cite as:
[1998] 1 FLR 520,
[1998] Fam Law 258,
[1997] EWCA Civ 2535,
[1998] 3 FCR 351
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JISCBAILII_CASES_FAMILY
B (minors) [1997] EWCA Civ 2535 (21st October, 1997)
IN THE SUPREME COURT OF JUDICATURE LTA 97/6850/J
IN THE COURT OF APPEAL (CIVIL DIVISION) FC2 97/7127/F
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR JUSTICE SINGER )
Royal Courts of Justice
Strand
London WC2
Tuesday, 21 October 1997
B e f o r e:
LADY JUSTICE BUTLER-SLOSS
LORD JUSTICE THORPE
- - - - - -
B (MINORS)
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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 831 3183
Official Shorthand Writers to the Court)
- - - - - -
ELEANOR PLATT QC & JOY OKOYE (Instructed by Sab &
Co., London, SE17 2AL) appeared on behalf of the (First Respondent) Applicant
MARK EVERALL QC & MISS S ROBINSON (Instructed by
Watson Woodhouse, 2 Norfolk Place, Middlesbrough) appeared on behalf of the
(Applicant) Respondent
RODERIC WOOD QC (Instructed by Principal Registry of the
Family Division) appeared on behalf of the Official Solicitor
- - - - - -
J U D G M E N T
(As approved by the Court )
- - - - - -
©Crown Copyright
LADY JUSTICE BUTLER-SLOSS: I will ask Thorpe LJ to give the
first judgment.
LORD JUSTICE THORPE: This application concerns two Nigerian
boys, A., and D., who are respectively 10 and 8 years of age. The litigation has
been principally between their biological mother and their psychological mother
and it has presented Singer J with extraordinarily difficult decisions on at
least two occasions.
It is unnecessary to record the history in any detail but in the
broadest outline the two boys have lived throughout their lives with their
foster parent, Mrs P., in Middlesbrough. There they have no influences or
experiences that would help them to comprehend and grow up within their Nigerian
heritage and culture. Their mother lives in London and the arrangements for
contact, which for some years operated reasonably smoothly, ran into troubled
waters and that difficulty was exacerbated by the commencement of litigation.
The principal judgment to determine whether the two boys should
continue to live with their psychological mother or whether they should be
transferred to their biological mother was taken by Singer J on 30 July 1996.
His conclusion in a finely balanced case was that they must move, for their
longer term needs outweighed the undoubted short term trauma that a move would
engender. That judgment was the subject of application to this court which did
not succeed and accordingly the future direction of the children's lives was
determined by that primary judgment.
There were a number of applications to the Judge thereafter. We
have been furnished with transcripts of a hearing on 19 December 1996 and a
hearing on 25 April 1997. All were concerned in that period with the difficulty
of implementation, since the boys' reaction to the judgment of 30 July 1996 was
to demonstrate their hostility and their determination to resist in difficult
and distressing behaviour in contact with their mother. It is possible to see
that the prospects of overcoming the enormous practical difficulties of
implementation were evaporating in the Spring of this year. Quite properly on
behalf of the biological mother applications were mounted for a Tipstaff order
to enforce. It is perfectly plain from the transcript of the judgment on 25
April 1997 that the Judge was not prepared to contemplate such a potentially
damaging method and in preference set up arrangements for a full investigation
of the way ahead at a fixture in June. The judgment that resulted from that
fixture, reversed the decision of July 1996. It is dated 19 June and is the
judgment which Miss Platt, on behalf of the biological mother, seeks leave to
appeal.
Her application is mounted on the basis of fresh evidence which
shows that the very carefully prepared meetings between the applicant and the
two boys have been surprisingly successful. The affidavit of D. S., a social
worker with the London Borough of Camden, shows particularly in paragraph 26
that the first meeting between the mother and children went off surprisingly
well and far beyond the anticipation of the professionals. The same register was
made of a later attempt at contact. So, says Miss Platt, had the Judge had that
foresight he might well have taken a different line. Of course the contrary
interpretation is that the boys, reassured by the judgment of 19 June, reversing
the management and confirming them in their placement with Mrs P. has freed them
to relate more naturally to their mother.
In advocating the draft notice of appeal Miss Platt says that
the Judge is to be criticised for his failure to adopt a robust effort at
enforcement not short of the physical removal of these children from their
Middlesbrough home by the agency of the Tipstaff. She says there is precedent
for that in the decision of this court in relation to the Zulu boy, S. That is
an argument that seems to me to be a perilous one since subsequent developments
in the life of the Zulu boy demonstrate that the endeavour to override his
deep-seated attachment to his psychological mother proved disastrous in outcome.
Finally, Miss Platt says that ground four of her draft notice is
the kernel of her complaint. The Judge placed too much weight on the wishes and
the behaviour of the children and insufficient weight on the unanimous view of
all the experts as to their long term needs and welfare. That submission is
simply unsustainable against the reality that between the two fundamental
judgments there had been a major shift in expert opinion to the extent that even
Dr Sein, the expert advocating the principle of return to the biological mother,
accepted that it was an agonisingly difficult principle to apply to this case.
He even registered his relief at the impossibility of embarking on his theory
that a bridging placement should be attempted, since investigation had revealed
that there was simply no bridging placement available.
The Judge had before him an agonisingly difficult choice. It
seems to me that realistically it would be impossible within the parameters
defined for the role of this court to contend that the decision at which he in
fact arrived was the wrong decision, particularly since it was a decision that
had the support of the Official Solicitor acting for the children.
Miss Platt has presented her application with great skill and
has in the most attractive way said what there is to be said in favour of
appellate review. But it is, in my judgment, a hopeless application. This is a
decision at first instance which this court recognises to be a discretionary
decision arrived at after very careful consideration of all the issues. It is a
decision that is simply not open to challenge since I, for my part, can see no
realistic prospect of this court intervening or altering in any way the order
that was made by the Judge. It is reassuring to know that this Judge retains the
management of the case. He has already made a further order in respect of
contact on, I think, 3 September and, by that order, he has specifically
provided for a further hearing on 24 November when the question of continuing
contact to the children will be determined. There is an obvious possibility that
building on the success achieved since June there will be a gradual development
of the relationship between the mother and the children, not through the
absolute order transferring residence from one household to another but by the
progressive development of contact, of course moving to liberal staying contact
within the school holidays. But it does seem to me that it is upon that prospect
that the applicant would wisely rest her future hopes.
LADY JUSTICE BUTLER-SLOSS: I agree that the application for
leave should be refused. One can very well understand why Miss Platt's client
sought the leave of this court, the Judge having dramatically changed his mind
between two years. But I have to say for my part that his change of mind and
reversal of his order was courageous and was a decision which I do not believe
in the agonisingly difficult circumstances of this case the Court of Appeal
could possibly interfere with. The more difficult the decision the less easy it
is for the Court of Appeal to intervene.
Consequently I entirely agree with my Lord that there is no
prospect of success on appeal and that all that can be said for the mother are
two things. One is she could not have had her case better put to this court and,
secondly, that she should reflect upon the wise words of my Lord, Thorpe LJ,
that the way forward should be to make contact work and have increasingly long
periods of, I hope, a happy relationship with the children during the periods
that they go to her.
Order: Application for leave to adduce further evidence granted;
application for leave to appeal refused; no order as to costs save legal aid
taxation of the applicant and respondent's costs; direction given re
identification of parties; transcript of judgments to be provided at public
expense.