England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SUNDERLAND COUNTY COURT
(His Honour Judge Carr)

		Royal Courts of Justice Strand London WC2
		Thursday, 29th March 2001

1. LORD JUSTICE HENRY: I will ask Lady Justice Hale to give the first judgment.
2. LADY JUSTICE HALE: The local authority applies for permission to appeal against one of a series of orders made by His Honour Judge Carr in the Sunderland County Court on 23rd January 2001. These were care proceedings about four girls: A, born in July 1987, and so thirteen; Z, born in June 1989, and so eleven; R, born in August 1992, and so eight; and E, born in August 1996, and so four. The younger three girls were the children of WD and BD. A has a different father, but has been brought up as one of the family. The judge made care orders in relation to the oldest three girls, but a residence order that the youngest, E, was to live with the paternal grandparents. He also made a supervision order and provided for a review of the residence order in four months' time.
3. Lord Justice Thorpe listed the application for an oral hearing on notice and imposed a stay of the order in the meantime. I understand that the current arrangements are that E sees her grandparents fortnightly with supervision, and she also remains in contact with her parents, but otherwise, of course, she has remained with the current foster carer.
4. This was a long hearing, stretching over some four weeks. The judge had to deal not only with finding the facts in respect of serious allegations of abuse of all four girls in different ways, but he also had to deal with the outcome in consequence of his factual findings. He found that both A and R had been sexually abused by WD. All four children had lived in a household where there was a great deal of physical and sexual violence. They had been exposed to inappropriate sexual behaviour and had suffered harm as a result. He completely exonerated, however, the paternal grandmother from any involvement in sexual abuse.
5. The paternal grandparents had put themselves forward as potential carers for at least two of the children and as a back-up carer for A in the proceedings. R, who was the most seriously damaged child, was for some considerable time not wishing to have contact with her family. The judge rejected the notion that Z should live with the grandparents, but upheld the idea that E should do so. He did so despite the various professional assessments, one from the Laygate Family Centre, one from the Sexual Behaviour Unit (where the staff includes a probation officer and a clinical psychologist) and one from the guardian ad litem. Their conclusion was that these grandparents would not be able properly to meet the children's needs or to afford them effective protection against the risks which they had experienced while living with their parents. The judge based his conclusion partly on criticisms of one of those assessments, which he thought had been in some respects unfair, and partly upon his own impression of the grandparents in the witness box and throughout this lengthy hearing.
6. The argument for the local authority is that the judge did not conduct the balancing exercise correctly. He gave too much weight to his impression of the grandparents during the hearing and insufficient weight to the unanimous views of the professionals involved and to the grandparents' own conduct, both before and during the hearing, which suggested that there might be a mismatch between what they said and what they did.
7. This was, of course, an extremely difficult case. The findings in respect of the children's father, WD, are very extreme. The paternal grandmother and step-grandfather had a great deal to do with the parents and, indeed, looked after the children for a good deal of the time; and yet they do not seem to have picked up on the signs of abuse that were manifesting themselves during the period immediately before the proceedings were started.
8. There are obviously concerns also about the source of the character and personality which resulted in the abuse which took place. One notices that in the background of the paternal grandmother there are matters which suggest that her first marriage to the father's father had contained features which appeared to be replicating themselves in the parents' marriage. Her marriage to the step-grandfather was obviously a much more successful, more supportive, more appropriate and calmer relationship. Nevertheless, there were serious issues there.
9. I recognise that the judge had the benefit of hearing all the evidence, of seeing the people and forming his own impressions. It may well be that in due course the court does not find itself able to determine that he conducted the balancing exercise wrongly or arrived at a result which was plainly wrong. But there are sufficient features of concern in this case to merit the attention of the full court and I would therefore give permission to appeal.
10. I am fortified in that conclusion by the thought that it is not going to do untold damage to the prospects of E eventually making a successful move to her grandparents' home for this appeal to proceed. She knows them well; she has a good relationship with them; she is continuing to see them fortnightly. Her welfare would not be unduly prejudiced by the further delay in appealing the judge's decision.
11. For my part, therefore, I would give permission to appeal and continue the stay until the appeal is determined.
12. LORD JUSTICE HENRY: I agree with both the reasons given in the judgment and the order suggested.
Order: application for permission to appeal granted and stay continued until determination of appeal; interim care order in respect of E renewed; court expressed view that appeal should take place as quickly as possible and that it would be appropriate, if so advised, for parents to be represented on appeal and for guardian ad litem, if so advised, to file skeleton argument and brief updated report about the circumstances of E (or, if so advised, make an application to become a party to the appeal). (Order does not form part of approved Judgment)