COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MRS JUSTICE BRACEWELL DBE
HIGH COURT OF JUSTICE FAMILY DIVISION
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LADY JUSTICE HALLETT DBE
|- and -
Mr S Cobb QC (instructed by Messrs Bindman & Partners) for the 1st Respondent
Miss T Cook (instructed by Messrs John Boyle & Co) for the 2nd Respondent
Hearing dates: 14th March 2005
Crown Copyright ©
Lord Justice Thorpe:
"Can I just say that I am obviously concerned that somebody should disobey the court order, but from a child care perspective whether that order existed or not, to move the children in that way, in secret, without them having the opportunity to say goodbye to their friends and their school friends, I think, to use the same word, was an appalling thing to do to them. It did not matter whether they were moving 50 miles away, never mind 250 miles away, to actually be uprooted without any planning, without any preparation, and suddenly taken overnight, which I did not appreciate actually happened until that emerged in evidence, that this was done as a farewell in the home of somebody else on that particular afternoon and then they were loaded into a car and driven down overnight to Cornwall, I can't imagine what impact that would have had on the children. They come back from CW's believing, "This is it. We are getting ourselves ready for school and we are going down to Woolworths to get our school uniforms", and all that sort of stuff, and all of a sudden you are spirited away in the middle of the night to somewhere, you know, 250 miles away where you don't know anybody. That to me, with the greatest respect to the court, the flouting of the order was bad, but the way in which it was achieved and the emotional impact it had on those children, was a terrible thing to do to them."
The Proceedings Below.
"I found the evidence both from CG and MG quite disturbing. I think that M's evidence --- Was I wouldn't say hostile but not far from that, and a very unhelpful attitude of a blanket answer of "I can't remember". That did concern me as to the level of truthfulness. So far as the evidence of CG was concerned, again I had concerns about the avoidance of answering the questions which I think went beyond what would normally be expected of a lay person in a court such as this. What also concerned me was there was no expression of remorse or contrition for disobeying the orders of the court. It was almost a blanket answer of "I believe it was in the children's best interests and therefore I did it". I think in her evidence this morning, I think it was the first time she used the word "mistake". Again that does concern me because it to an extent undermines my confidence in her possibly obeying future court orders."
"LP was exactly the same in the witness box as she was in the kitchen, and I mean that as a compliment. Her honesty and integrity I think I have commented upon in my report, and she came over, in my opinion, in exactly the same way in the witness box. There was no difference in the lady at all. Again I do mean that as a compliment and it was something that I found reassuring. CW's evidence I felt was consistent. Again she has every right to feel partisan, and I don't criticise her for that, and I think if you are looking for a balance between being partisan and objective, she tried to achieve two very different goals and I think actually did try quite hard with that, and again I've got no doubt at all that she loves these children and that her concerns in the majority of instances are quite genuine. Your Ladyship knows the emotive nature of these sorts of proceedings and I think having given due consideration to the emotional conflict in these sort of proceedings, I think she was as objective as any parent in these set of circumstances can hope to achieve."
"I think what the evidence has done is narrowed my opinion as to the balance and where the balance lies. I still believe that on balance that these children should remain with CG but I would stress now that I see that as a fine balance, and I believe that the court would have to be confident that in future any orders would be complied with because unfortunately, with the best will in the world, and to a certain extent with me acting as referee, we are achieving only part of what we could do and therefore there is going to be a need for orders to control the situation. That's unfortunate but in some cases we have to have the sort of detailed orders that Judge Hughes gave in order to control the situation. However, that has to be balanced by the fact if the court doesn't have the confidence that the person against whom the order is made is going to abide by it then it is not the, and I don't mean this with any disrespect, simple disobeying of the order. It undermines the whole principles on which the order was based and the premise with which children would reside with a party or with another party, and I don't mean to be disrespectful, but that's the premise that the orders are built upon and it can't be seen as a simple breach of a technical point, in my view, in Children Act cases."
The Appeal and the Submissions.
1. "The Judge did not pose the correct question, namely whether there are compelling factors requiring the displacement of the children's right to be brought up by their mother. Instead she appears to have asked whether the Mother or CW would provide the better home, and in consequence gave no weight to the fact that the Appellant is A and B's mother and their only available natural parent.
2. She did not carry out a methodical survey of all significant features of the case (as required by Section 1(3) of the Children Act 1989) and as a result
i) Attached no weight to the ascertainable wishes and feelings of the children.
ii) Ignored the strong attachment between the children and their mother.
iii) Ignored the glowing reports about the children's development.
iv) Minimised the immediate effect of a change of circumstances on the children.
v) Overlooked the lifelong disadvantages for the children of not being brought up by their mother.
She instead elevated the Mother's misconduct from being an important issue to being the crucial issue in the case to the exclusion of all others, leading to an unbalanced assessment of the Mother's ability to meet the children's overall needs."
"I do not, for my part, discern any conflict between the propositions laid down by your Lordship's House in J v C and the pronouncement of the European Court of Human Rights in relation to the natural parent's right of access to her child. Such conflict as exists is, I think, semantic only and lies only in differing ways of giving expression to the single common concept that the natural bond and relationship between parent and child gives rise to universally recognized norms which ought not to be gratuitously interfered with and which, if interfered with at all, ought to be so only if the welfare of the child dictates it."
i) The children's wishes and feelings.
ii) Their strong attachment to CG.
iii) The children's excellent development whilst in CG's care.
iv) The traumatic effect of moving the children from their mother, the consistent long term carer, coupled with the long term effect of such a switch. How, he asked, would they make sense of the fact that they had been deprived of upbringing by their natural mother?
i) CG's move to Leicester which had resulted in the children living in an unsalubrious area and attending a school in 'special measures'.
ii) CG's frustration of the telephone call contact that had been ordered by Judge Hughes.
iii) CG's lack of cooperation over the Easter holidays in 2005.
iv) CG's irresponsible complaints that C had hurt A during a contact visit. When the complaint was rejected by Social Services she had promptly renewed it to the police.
v) The extent to which CG had drawn the children into sharing her attitudes by creating an atmosphere in her home that inhibited the girls from spontaneous communication when with CW.
"…in weighing the rival claims of the biological parent over the psychological parent, the court must arrive at its choice on the application of the welfare test, the paramountcy test contained in s 1, having particular regard to the welfare checklist contained in s 1(3)…"
"Those around her, particularly her peers, will realise D speaking of Ma and Mummy indicates two mothers and this will arouse much curiosity. This will raise questions like can two women create a child? Do they have sex? Is there a father and, if so, how does he fit in? The facts of life themselves will be challenged as D and her peers try to come to terms with the mysterious and puzzling business of sexual relationships and making babies."
"Perhaps most importantly of all, I am considerably influenced by the reality that Mr B is D's father. Whatever new designs human beings have for the structure of their families, that aspect of nature cannot be overcome. It is to be hoped that as society accepts alternative arrangements more readily, as it seems likely will happen over the next few years, the impulse to hide or to marginalise a child's father so as not to call attention to an anomalous family will decline, although accommodating the emotional consequences of untraditional fatherhood and motherhood and of the sort of de facto, non-biological parenthood that is experienced by a step-parent or same sex partner will inevitably remain discomfiting."
"He will thus be recognised as a parent by the grant of parental responsibility but it will be a parent of a very different sort – no less important, just very different. It would be helpful, in my view, if a form of words could be included in the order as part of the pre-amble reflecting this paramount position of the family comprising the two mothers and the two children."
"(1) When a court applies Section 1 Children Act 1989 the identity of a child's natural (biological) parents is always a matter of significance, arising from the natural human emotional and physical need
as a child, to know one's genetic origins
if a parent, to know one's children.
(2) In each case the weight to be given to the blood relationship will depend upon the matter in issue, the identity of the parties and the court's assessment of all other factors in the welfare checklist."
"MRS.JUSTICE BRACEWELL: Is not the crux of this case whether the court can be confident if they stay with CG that she will not further marginalise CW and seek to gradually eliminate CW from their lives? A. I think your Ladyship is quite correct there, because it would, in my opinion, be extremely emotionally harmful for these children if CW was marginalised."
"Q So emotional harm if they were to be lifted from Cornwall but also emotional harm if they stayed in Cornwall but did not have the relationship that they have had, and should have, with CW and C? A. That's totally correct. That's my professional view.
Q Which makes your recommendation that the girls remain living in Cornwall, if I can put it in this way, a highly conditional one. It is conditional upon CG ensuring that the relationship between the girls and CW is restored to the previous level and maintained at that level? A. Yes, that's correct. Yes.
Q So you agree --- A. It is conditional. It is the whole package. The whole thing has to be there, in my view.
Q Do you accept my phrase "highly conditional"? Your recommendation is conditional, or highly conditional, upon delivery, as it were, of that other aspect of their placement in Cornwall? A. Yes, because I believe it would be equally emotionally harmful for CW to be excluded any further from these children's lives.
Q "Equally emotionally harmful" --- A. Yes.
Q -- for her to be excluded any further? A. That is my professional view, yes."
"However, in making that recommendation, the Guardian made clear that there was a crucial condition to that recommendation in that the court needed to be satisfied that CG would not further marginalise Miss W and her family and would obey court orders. He said that that was essentially a judgment for the court and the court had to balance the harm of moving the children now against the risk of future harm if the children were not able to have the relationship with Miss W and her family which they needed for their welfare. It is significant, I find, that when asked to balance the risk of emotional harm, on the one hand, of moving the girls to the principal care of Miss W and, on the other hand, of maintaining the current placement in Cornwall with the risk of the girls being deprived of the relationship they need with Miss W and her family, the Guardian was concerned that the risks were equal. The balance identified by these risks is, in my judgment, the crux of this case."
"On the past and recent history I have no confidence that if the children stay in Cornwall that CG would promote the essential close relationship with the W family. The Guardian puts faith in a family assistance order. However, he can only advise and bring the matter back to court. It is only for six months initially and a maximum of twelve months, whereas this case has long-term implications. Miss G could not have had plainer messages over the years and she has stubbornly purported to know what she thinks best. Her recent conversion does not ring true and does not accord with what |I have seen of her. I am satisfied that once the Guardian was off the scene I can foresee a future of litigation and emotional damage to the children. CG is not capable, in my judgment, of viewing matters objectively in relation to CW. She feels so strongly, as demonstrated in her evidence, and she simply cannot help herself. In my judgment, the effect of leaving the children with CG would be to diminish their relationship with the W family."
Lord Justice Laws:
Lady Justice Hallett: