England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SWANSEA COUNTY COURT
(HIS HONOUR JUDGE FURNESS)

		Royal Courts of Justice Strand London WC2A 2LL Wednesday 31 July 2002

1. LORD JUSTICE THORPE: These proceedings in the Swansea County Court relate to a little girl, B, who was born on 25 January 2001. Sadly, her mother has a long psychiatric history which, certainly presently, disables her from offering B any care. The mother is still an in-patient seeking her release under the Mental Health Act proceedings. There is a possibility that she may be released within the course of the next few weeks. That possibility is reflected in the current arrangement for the final hearing of the local authority's application for a care order to be heard on 7 October 2002.
2. The local authority is quite plain that this is one of those sad, but not unusual, cases in which the needs of a very young child can only be met by a care order leading to a closed adoption placement. The mother's position could be said to be ambivalent since she has a very volatile relationship with her own mother. The mother's older daughter, G, who is now 18 years of age, has effectively been brought up, certainly during her adolescence, in the extended family. She is about to go to university and much of the credit for her achievement goes to her paternal grandparents who have provided her with primary care, but also, to some extent to the maternal grandmother, Mrs J, who has played a significant part in her life.
3. Before B is committed to a childhood outside her family, the local authority has to give every consideration to the possibility of placement within the extended family given that neither parent may be in a position to meet the child's needs. Accordingly, the local authority gave consideration to Mrs J and carried out an assessment which led them to the conclusion that, at her age of 59, this would simply be too great a burden, particularly given the dangerously volatile nature of her daughter's possible reaction.
4. Nonetheless, despite that set back, Mrs J applied on 15 February for party status and for leave to issue an application for a residence order. That application met with some support from the father who, in a position statement, has said that he would initially have supported that arrangement, but that having considered the outcome of the local authority's assessment, it seemed an inappropriate future for B. However, he did not object to Mrs J entering the arena to put her case.
5. Her daughter's position on this application was more supportive. She said that if, for any reason, she were discounted as future carer then she would wish B to be placed with her own mother. Submissions were made to the effect that Mrs J has an arguable case for party status on the basis that she is the natural grandmother, and placement would surely be best within the natural family. The local authority and the guardian, having considered their position, oppose the application on the essential ground that, whilst the grandmother's intervention was understandable, it was not a realistic option meriting judicial consideration.
6. His Honour Judge Furness accepted that submission and refused the application. That led to an application to this court, which was unfortunately significantly delayed. It was not filed until 26 June. The paper order directed an oral hearing on notice with appeal to follow if permission granted. Expedition was directed, given that the final hearing was then fixed for mid August. Therefore, it has been possible to list it on the last day of term, despite the fact that the urgency has, to some extent, evaporated.
7. The judgment below is clear and full. The judge records the essential background and then turns to the submission advanced by the appellant's advocate in the court below. At page 4 of his judgment he records:

"She contends that the court should look at the appropriate section in the Children Act, Section 10.9 and take into consideration the factors there, and apply the test as set out in Re M [1995] 2 FLR 1986 which is effectively that before she can have leave she has to show that there is a reasonable likelihood of success. Putting it another way, that she has a good arguable case. The grandmother contends that when one applies that test then she does have a good arguable case because she has brought up her own children."

8. Having summarised the factual matters relied upon in support of the application, the judge said at page 6:

"When one just looks at those matters, then it must be said that quite a powerful argument can be advanced on behalf of grandmother."

9. He then goes on to record the contrary factors and concludes his judgment by saying at page 10:

"Sad, though it is to come to this conclusion, I have concluded that grandmother has not demonstrated a good arguable case....

As I indicated during the course of argument it does not mean, of course, that Mrs J cannot be called a s a witness by her daughter if she wishes to do so. I should say the daughter supported Mrs J's application to be made a party and I should have mentioned that before. It is a factor I had in mind in reaching my conclusion, but the daughter, of course, is always able if she wishes as a party to proceedings to call her mother at the hearing. That would be a matter for her."

10. On behalf of Mrs J, Miss Owen has embraced the suggestion of the court that it might have been better for Mrs J had her advocate below placed all the emphasis on the statutory check list in section 10(9) and much less on the test developed in the case of Re M [1995] 3 FCR 550, given that that test was formulated as long ago as March 1995 when judicial attention was not concentrated on the Article 6 and 8 rights of family members. Miss Owen also submits that, even if the Re M test remains relevant, this judge came to the wrong conclusion given the strength of the factors that could be marshalled on the appellant's behalf.
11. Mr Tillyard QC has responded realistically and with admirable brevity. He says that the judge quite properly applied the Re M test. That is what he was invited to do. He clearly carried out a diligent review of the relevant factors. He balanced those factors in the scales and reached a discretionary conclusion that cannot be criticised.
12. Where do I stand on those submissions? First, I would not criticise the judge in any way for the careful appraisal of all relevant factors leading him to a discretionary determination which certainly reflected the probable outcome of the current proceedings. But I do firmly believe that the grandmother's case was not put with sufficient force, nor was the strength of her position sufficiently analysed in the court below.
13. The statutory check list needs to be given its proper recognition and weight. Section 10(9) provides:

"Where the person applying for leave to make an application for a section 8 order is not the child concerned, the court shall, in deciding whether or not to grant leave, have particular regard to-

(a) the nature of the proposed application for the section 8 order:

(b) the applicant's connection with the child;

(c) any risk there might be of that proposed application disrupting the child's life to such an extent that he would be harmed by it; and

(d) where the child is being looked after by a local authority-

(i) the authority's plans for the child's future; and

(ii) the wishes and feelings of the child's parents."

14. The statutory language is transparent. Nowhere does it import any obligation on the judge to carry out independently a review of future prospects.
15. The decision of this court in Re M was centred upon a consideration in another section of the statute, section 34(3), where the court determines an application in relation to contact with children in care made by a person defined by subsection (1). In the course of his judgment, Ward LJ, whilst recognising that section 10(9) did not directly govern applications for contact for a child in care, held that, nonetheless, it would be anomalous if the court, in exercising its discretion under section 34, did not have in mind the criteria contained in section 10(9). He then held that, in exercising the discretion under section 34, the court must have regard to (a) the nature of the contact sought; (b) the applicant's connection to the child; (c) any disruption or risk to the child or risk to the child brought about by the proposed application; and (d) the wishes of the parents and the local authority on the issue. By that route, Ward LJ was importing into the section 34 exercise the four statutory criteria that Parliament had applied in section 10(9).
16. Ward LJ went on to say that, in weighing up the factors, the court should apply the following test:

"(1) If the application is frivolous or vexatious or otherwise an abuse of the process of the court, of course it will fail.

(2) If the application for leave fails to disclose that there is any eventual real prospect of success, if those prospects of success are remote so that the application is obviously unsustainable, then it must also be dismissed: see W v Ealing London Borough Council (above), approving Cheshire County Council v M (above).

(3) The applicant must satisfy the court that there is a serious issue to try and must present a good arguable case."

17. I would observe that all that is said directly in relation to the discharge of the judicial task under section 34(3) and not directly in relation to the discharge of the judicial task under section 10(9). In my experience, trial judges have interpreted the decision in Re M as requiring, in the determination of applications under section 10(9), the application of the 3-fold test formulated by Ward LJ to exclude applications which are plainly hopeless.
18. I am particularly anxious at the development of a practice that seems to substitute the test, "has the applicant satisfied the court that he or she has a good arguable case for the criteria that Parliament applied in section 10(9). That anxiety is heightened in modern times where applicants under section 10(9) manifestly enjoy Article 6 rights to a fair trial.
19. Whilst the decision in Re M no doubt served a valuable purpose in its day and in relation to section 34(3) applications, it is important that trial judges should recognise the greater appreciation that we have developed of the valuable contribution that grandparents make, particularly to children of disabled parents. Judges should be careful not to dismiss such a potential contribution without full inquiry. That seems to me to be the minimum essential protection of the Article 6 and Article 8 rights that grandparents enjoy.
20. My conclusion is that the appeal should be allowed, that Mrs J should be accorded party status and should have the right to issue an application for a residence order. I have reached that clear conclusion not on any critical appraisal of the judgment of His Honour Judge Furness. On the evidence before him, and particularly on the submissions advanced to him, it is perfectly understandable that he approached the issue in the way that he did. He was plainly not wrong so to do. I only differ from him because I conceive that the grandmother's case was not presented to him as strongly as it might have been. There will obviously have to be consequential directions.
21. MR JUSTICE FERRIS: I agree with all my Lord has said and with the way he proposes to deal with the case.
Order: Appeal allowed. Counsel to agree final directions. Public funding assessment of the Appellant's costs.