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 HIGH COURT
GLOUCESTER COUNTY COURT
(HIS HONOUR JUDGE HUTTON)

		Royal Courts of Justice Strand London, WC2 Wednesday, 16 October 2002

1. LORD JUSTICE THORPE: Mr Justice Bodey will give the first judgment on this application.
2. MR JUSTICE BODEY: This is an application for permission to appeal and an application for a stay of an order made by his Honour Judge Hutton in the Gloucester County Court on 6 August 2002. It concerns a little boy called L, born on 13 November 2000, who was then therefore 1¾ and is now nearly 2 years of age.
3. The effect of the order was the transfer of residence to the mother from the father and the paternal grandmother where he has lived since he was born. The father and paternal grandmother apply to reverse that order.
4. L is the child of very young parents. The mother, RG, was 16 at the time of his birth and is now aged 18. The father, MW, was 15 years at the time of his birth and is now aged 17. Both were at school at the time of his birth and both propose to go forward into further studies, the father's perhaps being the more demanding, since his aim is to go to Bristol University (all being well) and then to read for the Bar.
5. The mother and the father (as I shall call them) have respectively lived with their own mothers throughout, and still do. Their relationship terminated not long after L's birth.
6. Their mothers' homes are in fact in the same street, seemingly just a few doors away. Both grandmothers are single parents and both work. The paternal grandmother, AC, is an officer with CAFCAS. The maternal grandmother, GK, is a school administrator.
7. At around the time of L's birth adoption was considered for him but very quickly second thoughts took place, the initiative coming from the father. The outcome was that arrangements were agreed within the family for L to be cared for by the father and the paternal grandmother. That is what happened and L has lived there ever since.
8. The paternal grandmother unsurprisingly has been L's primary carer and it is with her that his primary attachment has taken place. He is very attached to her. However, on the judge's findings, there is also a very good relationship between L and the mother and between L and the father. He is relaxed and confident with each of his parents. Either of them, as found by the judge, could care for L.
9. L has had plenty of contact with the mother; visiting contact four days a week and a day at the weekend; in addition, since March 2002 (following a contested hearing) the mother has had staying contact on alternate weekends. Of course L has seen a great deal of his father because his father has been caring for him along with the paternal grandmother.
10. Unfortunately tensions built up within the relationship of the four grown-ups, for reasons which are not now greatly important, but they centred round whether or not L should go to a nursery; and I think the mother's feeling has been that she has been somewhat sidelined.
11. This led to her issuing an application for residence in December 2001, which produced a cross-application by the paternal grandmother for residence.
12. The reporter from CAFCAS, Mrs Thomas-Peter, prepared a very thorough report and came down against upsetting the present status quo. She reported that the nursery had told her that L was a happy, sociable, well-adjusted little boy "who is reaching all his developmental milestones". That observation reflects great credit particularly on the paternal grandmother and the father, but also indeed on all the grown-ups in his life.
13. Mrs Thomas-Peter felt that, despite L's strong and developing relationships with the mother and with the father, nevertheless his home is with the paternal grandmother and the father, and that his good adjustment over the last few months to overnight stays with the mother did not necessarily mean he would adapt to a permanent change of carer.
14. She compared the mother's early ambivalence towards L with the father's greater consistency and motivation at the outset, as regards keeping L within the family. She made the point that the mother's longer term caring for L was still untested. She felt that the paternal grandmother probably could be trusted to "withdraw" from the motherly role and gradually become more of a grandmother to the child.
15. She concluded that the risk, short and longer term, of moving L from the paternal grandmother and the father should not be run.
16. On 5 and 6 August 2002 Judge Hutton heard this case over two days. He heard the father, the paternal grandmother, the mother and the maternal grandmother and Mrs Thomas-Peter. He heard submissions by the representatives of the father, the paternal grandmother and the mother. He described Mrs Thomas-Peter's report as being well-balanced and helpful.
17. He found the mother "perfectly capable" of being L's primary carer, nor did he doubt the father's ability as such to care for L, describing the father as "an excellent young man."
18. However, he held, in effect, that the father was not being as realistic as the mother in his plans and proposals to combine his studies with being a primary carer of L.
19. He was impressed by the maternal grandmother as a witness, and held that she provides what he described as "a very happy and stable home" for the mother and the mother's two sisters, one of whom is older than the mother and the other younger.
20. He took a less favourable view of the paternal grandmother than did Mrs Thomas-Peter. He said of her:

"... I am bound to say I found her to be very intransigent in her opinions and dogmatic as to what would be best for L, namely that she herself would be the best carer, and should be the carer, but that MW [the father] would be able to take over in due course. She was, in general terms, dismissive of her daughter-in-law's ability to care for L [by daughter-in law-he meant the mother] and there is undoubtedly a certain coolness between mother-in-law and daughter-in-law. Alison [the paternal grandmother], for all I know, may be a very efficient CAFCAS officer, but I found her an unsympathetic character and much too dogmatic in support of her own case."

21. The learned judge referred to the 'welfare check-list' briefly and said that he had no doubt he should grant residence to the mother, noting as he did:

"... it is not the case that I never grant residence orders to fathers, it is the natural and usual situation for a mother to bring up a young child."

22. In order to obtain permission to appeal, an aspiring appellant to this court has to show that he or she would have a reasonable prospect of success, or that there is some other compelling reason why an appeal should be permitted.
23. So what are the main criticisms of this judgment? Mr Kirk in his most helpful submissions has reduced them down to three.
24. First, that the learned judge made insufficient recognition of the status quo here, and of the attachments which L has made to the paternal grandmother and to his home and to his father; along with insufficient recognition of the risks identified by Mrs Thomas-Peter of moving him; second, that the learned judge gave no reasons for departing from the report and conclusions of Mrs Thomas-Peter; and third, that the judge gave undue weight to the mother's claims as a mother at the expense of the father's case.
25. In my judgment there is some force in these criticisms of the Judgment. It was economic as to the learned judge's reasoning. However, the constituents of Judgments in these circumstances are not set in stone, and this was (as Mr Kirk has fairly told us) an extempore Judgment.
26. A judge is of course entitled to differ from the CAFCAS reporter if his or her reasoning can clearly be seen and construed from the Judgment. In my view it clearly can be seen from this Judgment. He formed a different view of the paternal grandmother from that formed by Mrs Thomas-Peter, and he clearly foresaw possible future difficulties in the family dynamics, if the paternal grandmother was still to remain for the time being the primary carer of the child.
27. He felt that the mother was more realistic in her plans for combining her studies with childcare than the father was in his plans. He referred to the 'welfare check-list' and he clearly weighed up the factors therein set out, although he did not set them out individually. In referring to its being "natural and usual" for mothers to bring up young children, he did not thereby apply a presumption or seek to abide by any set principle, and that terminology which he used resonates well with the authorities.
28. It seems to me that these were quintessentially matters for the consideration of the trial judge, who saw and heard the witnesses and who was able to evaluate the dynamics between them in a way that this court cannot do. It is often said that the more finely balanced the decision, the more difficult it is to take it up on appeal.
29. In my judgment there is no real prospect of success on appeal in this matter and I would dismiss this application.
30. LORD JUSTICE THORPE: I agree.
(Application dismissed; Applicant's costs to be subject of a detailed assessment)