England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(Mr Justice Kirkwood)

		The Royal Courts of Justice The Strand London Thursday 25 July 2002

Thursday 25 July 2002

1. LADY JUSTICE HALE: This is one of the saddest cases I have ever read about and heard about. It is an application by the maternal grandfather of a little girl called E, who was born on 15 March 1991, for permission to appeal against the order of Kirkwood J made on 8 February 2002, refusing his application for contact.
2. In 1991, at the age of 4 months, E suffered a serious injury while in the care of her parents. She suffered a major brain injury leading to cerebral palsy and cortical blindness. She was fostered and it was impossible to return her to her parents because of their continued misuse of drugs. The maternal grandfather assumed the role of her principal family member. There were wardship proceedings which led in February 1992 to an order that he should have the care and control of E, who was then aged 11 months, and he remained her principal carer until 1999. There is no doubt that he was devoted to her, that a close relationship developed between them, and that he was a sturdy fighter for what he considered should be provided by way of services and help for E. In 1995 the wardship order was replaced with a residence order and he was given permission to remove E to Spain or Gibraltar, either temporarily or permanently.
3. E started in 1994 at a specialist school as a day pupil. The professionals began to develop concerns about whether her grandfather was able to meet her complicated and developing needs. In November 1998 care proceedings were begun. The grandfather would attribute those to his own complaints to social services about various matters with which he was dissatisfied at the school. The outcome at first was an agreement that E should become a weekly boarder and spend her weekends and holidays with her grandfather, but the authorities continued to voice concerns. There was a hearing before His Honour Judge Russell-Vick at which any allegations of possible impropriety on the part of the grandfather were rejected and the grandfather feels, perhaps unsurprisingly, that the whole matter should have stopped then. Nevertheless, the broader concerns about how best to meet E's developing needs continued. A final hearing of the care proceedings was fixed for June 1999, when the issue would be whether she should spend her weekends and holidays with her grandfather or with foster parents, although it was then acknowledged by everyone that continued contact with her grandfather was very important.
4. On the weekend of 19 June 1999, just before the hearing, the grandfather abducted E, and I regret to say that had he not done that, we probably would not be here today. They were found in Spain at the end of October 1999, having been leading something of a wandering life in an attempt to evade the authorities, and returned to this country. E was placed with foster parents and there has been no direct contact between them since then. Not surprisingly, the grandfather wishes to be in a position to reassure E that he did not abandon her or dump her and that he remains as committed to her future as he always was. The evidence is that she has made good progress in a quite remarkable foster family since that time.
5. The grandfather's application for contact with E first came before Kirkwood J on 9 March 2001 and he was represented then by counsel. His case was a straightforward one, which would often find favour with the courts, that he had been E's principal carer until November 1999; until the abduction in June it was accepted that contact between them was important; E had indicated to the guardian that she wanted to see "Daddy" again; and he was part of her natural family, the only part of her natural family committed to her and her future. Kirkwood J heard evidence from a consultant child psychiatrist specialising in learning disabilities and from an educational psychologist who assessed E's abilities, particularly language abilities, as well as from the social worker and the guardian. He gave a very full, careful and sensitive judgment. E has very special needs resulting from her physical disabilities and her learning disabilities. He focused on the risks involved: first was the difficulty she would have in making sense of contact; second, that regular visits would upset her routine; third, it would also upset her family life and her education; there would be problems of how she would react and the risk of regression; how her carers would react and cope with this; and the likelihood that the grandfather would find fault with aspects of her care and campaign about it as he had done in the past. Fourth, it would only work in cooperation with the local authority and the grandfather was at war with them, having sued everyone in sight including the social worker. Fifth, there was a risk of disclosure of the confidential placement which might adversely affect the security of the home. Sixth, there was a risk of abduction. For all of those reasons, Kirkwood J decided that, unusually, contact with not be in E's best interests, although he acknowledged what a difficult and sad decision that was.
6. The grandfather applied for permission to appeal, which was heard by Thorpe LJ on 5 November 2001. Thorpe LJ said that it was inconceivable that the Court of Appeal would interfere with such a careful and humane judgment. But things had changed over the summer. The grandfather had undergone major heart surgery and it was then said that he had only six months to live. His solicitors had written to the court proposing a farewell visit. Thorpe LJ refused permission to appeal but he went out of his way to help arrange a speedy hearing of a renewed application.
7. That came before Kirkwood J on 29 November 2001. The grandfather was again represented by counsel. The judge accepted that there was no longer a risk of abduction because of the deterioration in the grandfather's health, but all his other five reasons still, in his view, held good. Furthermore, at that hearing the grandfather made it clear that he was not interested just in a farewell visit: he wanted regular contact. Kirkwood J gave him an opportunity to think about it but he maintained that stance at the hearing, so the application was refused. However, Kirkwood J made it plain that he was willing to consider the possibility of a farewell visit, and shortly afterwards the grandfather wrote saying that he now accepted he would have to restrict himself to this. He told Kirkwood J that he wanted to see how E was after all this time, whether she had indeed come on as the reports said; and he wanted to tell her that he had to go away for a long time and that everything would be okay. By then it turned out that his life expectancy was somewhat better than the impression given to Thorpe LJ, but there is a letter from his doctor in the bundle that makes it plain that the prognosis for someone with his particular problem is not good.
8. Kirkwood J's reasons are at pages 14-15 of the excellent bundle that the grandfather has put before the court:

"E has not seen her grandfather more for more than two years. All the reassurance she has been given over time is that her foster family is her for-ever family. She sees that as her family. She has, I am told, no concept of wider or other family. Since March 2001 at least, she has been assured that she will not see her grandfather. He has simply not been part of her progress in life for a very long time now. E has developed physically and verbally; she is doing well in many ways, but cognitively, perceptually, she has made very little progress.

One of the features of the case remains that what E learns, she learns essentially by experience of what happens to her. Her growing security in her foster family comes from her experience of it and not from what she is told. Although she absorbs at some level what she is told, it is difficult for anybody to know the extent and at what level she absorbs it, and it is essentially what she experiences in life that teaches her and brings her forward.

The great anxiety of the foster parents, I think of E's teacher, of the social worker, and of the guardian, is what E would make of a meeting."

9. He was concerned, as he had always been, that such a meeting would be devastating for E and would destroy her. Coupled with the anxiety that E had been showing about her grandfather since November, these factors led him to conclude -- again, very sadly -- that he would refuse the application. E would be unable to understand what it was about.
10. In making this application for permission to appeal, grandfather has made it clear that all he asks for is a goodbye visit, not in his own interests but in E's, because he wants to assure her that she was not dumped and left. He also reiterates a large number of complaints about the way in which the authorities have handled the case since back in 1998, and I have touched on some of those matters when reciting the history. The difficulty the Court of Appeal has in these cases, as Thorpe LJ made clear on the previous occasion, is that where the judge has seen and heard the witnesses, and has weighed up the various factors and has correctly applied the law -- which is that it is E's interests that are paramount, and not anything else -- and he reaches a decision, then this court cannot interfere with it. It is particularly difficult for this court to interfere with a decision which was hard to reach. The harder the decision, the more finely balanced, the more difficult it is for us to interfere, because we do not try the case: we do not see the people; we do not form a view about the professionals, some of whom, of course, were based with social services and the school, some of whom were more independent. That is why there would be no real prospect of success in an appeal in this case.
11. I do wonder, however -- and I do no more than wonder -- whether it would help the grandfather to see a video of E as she now is. That would perhaps go some way to reassuring him that she is all right, even to persuade him that changes had taken place, as he has been told. He is in touch with her in the sense that he sends cards and presents: probably too much and too many and too often, but he does that. If the evidence is correct that she simply could not take in certain types of information or relate them to her everyday life, well then so be it. But obviously, it is through those means that the grandfather can seek to give her the reassurance he wishes to give. But I would hope that social services would give careful consideration to the possibility of another and longer video showing the grandfather how E is these days. That could be done without prejudice to any of the considerations which led Kirkwood J to reach a decision with which this court cannot interfere.
12. I will cause there to be a transcript of what I have said at public expense to be provided to the grandfather and I will also cause it to be served on the social services so that they can consider what I have said.
ORDER: Application refused. Transcript of the judgment to be provided at public expense to the grandfather and to social services. (Order not part of approved judgment)