England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM (CIVIL DIVISION)
ON APPEAL FROM THE PORTSMOUTH COUNTY COURT
PO0JJ00162

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/02/2007

Lord Justice Wall:

1. This is the judgment of the court.
2. At the conclusion of the argument at approximately 4.30pm on 21 February 2007, we announced our decision in this case. We granted permission to appeal, but said that the appeal would be dismissed for reasons to be given in writing. This judgment sets out those reasons. As the judge is to hold what we anticipate will be the final hearing in the proceedings on 27 February 2007, we indicated that we would endeavour to give our reasons before that date.
3. This is a case to which reporting restrictions will apply. We will, accordingly, identify the parties and the children by initials only, and nothing must be published which would, in any way, identify any of them whether by name, location or otherwise.
4. The appellant, SG, is the maternal grandmother of three children, D, J and C. D and C are boys, now aged 8 and 3. J is a girl aged 5. NR is the mother of all three children: DR is the father of J and C. The father of D is a man called ML, who plays no part in D's life and has played no part in the proceedings. Indeed, D, who, until his removal from their care on 15 February 2005, was brought up by his mother and DR, currently believes that DR is indeed his natural father. At some point in the future, D is going to have to learn the truth about his paternity.
5. SG, whom we will henceforth call "the maternal grandmother", supported by DR (whom we will call "the father") appeals against an order made by Her Honour Judge Linda Davies, sitting in the Portsmouth County Court on 22 January 2007. The judge had been hearing protracted care proceedings instituted by a local authority under Part IV of the Children Act 1989 in relation to all three children. The substantive order made by the judge, and which the maternal grandmother challenges, dismissed her applications for residence alternatively special guardianship orders in relation to all three children. The judge also refused the maternal grandmother permission to appeal.
6. The judge did not, however, make final orders on 22 January 2007. Instead, she adjourned to 27 February 2007 the local authority's applications for care orders under Part IV of the Children Act 1989 and for placement orders under section 21 of the Adoption and Children Act 2002 in relation to the children. She did so to enable there to be "further consideration of the care plan, in particular the availability of long-term foster placements and contact proposals". In her order, she recorded three statements made by the local authority. The first was confirmation that it did not intend to consider the children's current foster carers or members of the foster carers' family, as potential long term carers for the children. Secondly, she recorded the local authority's indication that "a concurrent search for adoptive and long term foster parents should be undertaken in the best interests of these children"; and thirdly, she recorded the local authority's confirmation of its intention to amend the care plans in respect of all three children accordingly. She directed that the local authority should serve its amended care plans by 4.00pm on 23 February 2007, and continued the interim care orders currently in force.
7. We were told at the bar that the judge did not give an extended judgment on 22 January 2007, but indicated her intentions in short form after hearing submissions from counsel. Thus although the order against which the maternal grandmother seeks to appeal was made on 22 January 2007, the substantive judgment which underlies it was given on 19 December 2006.
8. The judgment given on 19 December 2006 was the second which the judge had given in the case. The first was given exactly a year earlier on 19 December 2005, and in order to understand the judge's thinking, it is necessary to took at the history of the case in the light of her earlier judgment, which, in our judgment, was of high quality and was not appealed by any of the parties.
9. It was common ground at the hearing which resulted in the judgment given on 19 December 2005, that neither parent was in a position to care for any of the children. The parents' relationship had begun in 1998, when the mother was already pregnant with D by ML. The mother and the father married on 16 January 2004. It was not in dispute that the father has always accepted D as his son, and had been aware of the mother's pregnancy shortly after meeting her.
10. The judge describes the parents' relationship as "turbulent". There was a great deal of serious domestic violence between the couple, and there is no doubt that the incidents of violence, combined with the parents' chaotic life-style, have had a seriously adverse impact on D in particular.
11. The judge, in her December 2005 judgment, selects some examples. On 22 January 2002, the father, in a temper, smashed the rear window of the maternal grandmother's car. D, who was in the car, suffered cuts in this incident. In July 2003, when she was some 22 weeks pregnant with C, the mother went to a refuge. There was then a reconciliation. D was recorded at the time as saying that "daddy punched mummy". The allegations of violence continued in 2004. In the spring of that year, D was recorded as missing a substantial amount of schooling. In May 2004, the mother left home again after describing an incident in which she said that the father had thrown a bicycle at her and banged her head against a door.
12. By the summer of 2004, the judge records the mother as drinking to excess and using amphetamines. The father also took amphetamines. There were housing problems. The violence continued. On 5 January 2005, the father left home. The following day he was arrested and subsequently charged with criminal damage after forcing his way back into the home. On 17 January 2005, the mother reported that the father had threatened her. She was drinking to excess as well as taking drugs. D was not at school.
13. On 7 February 2005 there was a fire outside the home and, in consequence, the father was arrested. He was charged with arson and remanded in custody, although subsequently a lesser charge was substituted. On 16 February 2005, the mother was drunk and may well have been under the influence of drugs. The judge records that she was running in front of vehicles in the vicinity of the matrimonial home, causing them to brake and weave in order to avoid hitting her. The mother was arrested and charged with being drunk and disorderly. The children were initially made the subject of police protection orders, and then received into the care of the local authority. After a short period in two separate placements, they were placed together in the same placement, where they have remained.
14. On his release from custody on 23 May 2005, the father went to live with a woman by whom he already had children, and with whom he had been conducting a relationship whilst living with the mother. The mother moved away to the north west of England where she went to live with an old family friend, one DB, who lived near to where the maternal grandmother was by then living.
15. Against this background, it is unsurprising that the judge found the threshold criteria under section 31 of the Children Act 1989 satisfied in relation to all three children. We have set out the detail only to emphasise the damage which D in particular, as the eldest of the three children, plainly suffered at the hands of his parents.
16. The local authority's care plan in the hearing before the judge in December 2005 was that all three children should be adopted outside the family. The alternative was that they should live with the maternal grandmother. She had shown a remarkable degree of commitment to the children. Although living in a different part of the country, she had been assiduous in her attendance for contact with the children. The local authority had assessed her, and, as the judge recorded it, conceded "significant positives" in her commitment and ability to care for the children, who were very fond of her.
17. The professional view of both the local authority and the guardian was, accordingly, that the two options open for the children were finely balanced. That balance, however, they thought, came down in favour of adoption. The judge conducted her own balancing exercise. The advantages of placement with the maternal grandmother were that the children would remain in their birth family; their contact with their parents and other relatives could be promoted and the children would not be separated. Both parents and the maternal grandmother loved the children, and the children, D in particular, loved their parents and had a special relationship with their grandmother.
18. On the other side of the coin, there was a risk of instability in the longer term and of a breakdown if the maternal grandmother, who had herself had what the judge described as "a very difficult life", proved unable to overcome her past difficulties and provide a stable environment for the children. In addition, there were "difficult relationships" between the parents and the maternal grandmother which would have to be managed to meet the interests of the children. This would not be easy, given what the judge found to be the present hostility between them. Adoption would provide a fresh start with parents who would have been assessed to meet the children's needs, and the potential for future conflict within the birth family would be minimised.
19. At the same time, the judge was clearly of the view (shared by everybody before us) that the children should not be separated. D had particular needs. Before he could "move on", he required therapy which would take six to eight months to complete. If a final order was made, the children would go before the adoption panel in January 2006. The outcome of any sibling assessment was likely to be that D's time-scale was considerably longer than his half brother and sister. D would not be easy to adopt.
20. After a very full and careful analysis, the judge reached the conclusion that there were too many uncertainties in the local authority's care plan to make it appropriate for final orders to be made. There was a very real risk that the children could be placed separately. There had been no sibling assessment, nor any analysis of each child's needs. The relationship between the children and the maternal grandmother also needed proper assessment. There was no plan as to how D was to be informed of his paternity, or how the other children should be told that they had half-siblings also on their father's side. There needed to be certainty. The judge needed more information.
21. What the judge did, therefore, was to adjourn the applications on interim care orders to enable a sibling assessment to be undertaken and for there to be a further assessment of the maternal grandmother. This was to consider; (1) her relationship with the children; (2) her ability to sustain change; and (3) the extent and availability of the support which would be required to sustain and support a placement of the children with her. The judge indicated that the best way ahead for item (2) might be a psychological assessment.
22. Thus one of the most important immediate consequences of the judge's judgment was the instruction of Dr. Roger Bradford, a consultant clinical psychologist to address the issues identified by the judge. He reported on 10 May 2006. His report was, on the whole, favourable to the maternal grandmother. He observed the children's interaction with her, and in summary considered there was a good relationship between them. He thought they showed evidence of a secure attachment to her. The quality of the attachment served, in his mind, to underscore the importance of keeping them together as a sibling group.
23. When he came to discuss the extent of the changes which the maternal grandmother had made in her life, her ability to sustain them, the support which she would require in order to care for the children, and the children's relationship with their parents were they to be placed with her, Dr. Bradford was more cautious, although still positive. the maternal grandmother had acknowledged the risk of the children being exposed to similar events to those to which they had been exposed in the past. She had gained insight and a resolve not to repeat past failures. It was, however, difficult to gage how sustainable that altered self-perception would be.
24. On balance, Dr. Bradford thought that there was a sufficiently significant relationship between the children and the maternal grandmother "such that a placement could be a positive outcome for the children". He was, however, concerned about the maternal grandmother's relationship with the children's mother: -

The one area where I had concerns related to SG's ability to think through the full implications of her behaviour and its resulting potential impact on the children. Two examples might illustrate the point. Firstly, SG told me that her daughter had raised the idea of joining her for a contact visit with the children. SG was supportive of the idea, although when his was discussed with the local authority, the plan had not been sanctioned, which SG thought was wrong. My concern was that SG appeared not to appreciate the possible impact on the children of the plan.

25. The second example was to like effect, but had added to it the maternal grandmother's wholly unrealistic belief that her daughter was actively engaged in treatment for her addiction and psychological problems.
26. Dr Bradford advised that if the court decided to place the children with the maternal grandmother, she should be provided with ongoing support under a care order. He thought that for both D and J there was likely to be "a degree of confusion, anger and anxiety" following such a move, and that these issues could be addressed in therapy . The local authority's involvement was important also to ensure that there was access to appropriate services, and for problems to be addressed as they arose.
27. Dr Bradford also expressed concern about the question of future contact between the children and their parents: -

In summary, my opinion was that the issue of contact between the children, (the mother and the father) and how it is managed represents a significant issue in the event of the children being placed with SG. It holds the potential for inconsistency in the case of (the mother) and anxiety in regard to D and (the father). At a wider level, it could instil a sense of confusion and inconsistency for all the children if not appropriately managed. It is an issue that would need to be carefully planned and monitored, and I think if it is to occur is best conducted under the guidance and oversight of the local authority at least in its early stages.

28. Dr Bradford's report was instrumental in the local authority changing its care plan and deciding to move towards a placement of the children with the maternal grandmother. Unfortunately, as it seems to us, Dr Bradford was not involved in the planning for the move. His advice was limited to his report. The local authority identified a number of potential problems, including the relationship between the mother and the maternal grandmother, together with what the judge described as D's "continuing apprehension about the behaviour and threat presented by his mother and DR". The plan was for the children to have increased contact with the maternal grandmother, and to spend their summer holidays with her, with a view to starting school from her address in September 2006.
29. Given the difficulties, the local authority decided that the children should not be informed that the plan was for them to live with the maternal grandmother. Furthermore, the local authority required the maternal grandmother to enter into a detailed agreement which, inter alia, restricted the people with whom she was allowed to bring the children into contact, and in particular sought to protect them from unauthorised contact with the mother and the father. This latter document was criticised by Mrs. Susan Garnett, for the father, in her oral submissions before us. We do not share that criticism. In our judgment the local authority was entitled to regulate the children's contact with family members and others, as an incident on 30 June demonstrates. The judge records D being upset because DB (in whose home, it will be recalled, the mother had been living) was present in the maternal grandmother's home and upset D by his conversation.
30. The maternal grandmother's accommodation was a one-bedroomed flat. It sufficed for contact, but was plainly inappropriate if the children were to live permanently with her. Nothing, however, was done by the local authority for the area in which the maternal grandmother lives (which we will call the second local authority) to provide alternative accommodation. Indeed, the judge found that the second local authority was dismissive of the plan for the children to live with their grandmother, and did not provide support for her.
31. By July 2006, the local authority had decided to postpone the move until October. This was, the judge records, because D had continued to say that he did not want to live with the maternal grandmother. He said that he enjoyed seeing her and spending holidays with her, but did not want to live permanently with her.
32. This is the first of a number of references by the judge to D's wishes and feelings. In July 2006, however, the judge found that the local authority genuinely hoped that D's concerns would be dispelled and the he would be reassured that his maternal grandmother could care for him. The judge also found that D had become aware, despite the local authority's silence on the point, that this was indeed the local authority's plan. It seemed, moreover, to be working because, at the end of August, the children returned from a visit clearly having enjoyed themselves, and D was extremely distressed to be delivered back to his foster parents. Indeed, following a successful visit from the maternal grandmother on 16 September 2006, the local authority workers expressed the view that they had "cracked it" and that the placement was likely to be successful.
33. However, on 20 September 2006 there was an incident in the children's foster home which the judge describes as "the immediate cause" of the change of plan by the local authority back to adoption. Quite inappropriately, the foster father supported J when she falsely complained D had struck her. D, as the foster father well knew, had not struck J, but he decided that D should be "taught a lesson" about the perils of lying and being punished unfairly. D's reaction was extreme. It and its consequences are described by the judge in paragraph 26 and 27 of her judgment of 19 December 2006:

26. D was very upset and was described as grabbing his own head in his hands and then disclosing that his mother had been present on an occasion when the children had been with grandmother for their two week holiday. He was described as becoming very distressed. The foster parents informed (the social worker) who came to see D on 20 September, when he repeated what he had said about his mother's presence and also stated that he did not wish to live with his grandmother.

This was the trigger for a change in the local authority's plan. There is no doubt that D's statement was not challenged when he made it or indeed thereafter. The local authority now says that whether mother was in grandmother's house or not, D was and is convinced that she had been and that there is in either event a problem. In their view D is very frightened of his mother and DR and not persuaded that his grandmother can protect him from further harm from his parents. The local authority therefore changed the plan back to adoption for all three children. They do not accept that grandmother could provide stability for the children, particularly D, within the children's time-scale. They say that she cannot persuade him that he will be safe and furthermore do not accept that she can or has severed her links with her daughter.

34. It should in fairness to the maternal grandmother be recorded that she found as a fact that the mother had not been present at contact as D had alleged.
35. The judge in her judgment then records a series of unfortunate incidents involving the foster parents' behaviour towards D, and in paragraphs 33 and 34 of her judgment, she records the following: -

33. D has refused to visit his grandmother since the 16^th September and at the conclusion of the hearing the position for the court was that he had firmly refused to see her, or to accept any communications from her, although J and C had continued to have visiting contact with her.

34. It is clear, and I accept their evidence on this point, that the social workers have tried very hard to persuade D to talk to his grandmother or to see her but he continued to refuse until very recently. She had written to him and he tore up the letter and also refused to accept birthday presents and cards from her. to accept any communications from her.

36. At this point in her judgment the judge paused to say that, during the period over which her judgment had been reserved, she had received information that there had been contact visits on 4 and 5 December 2006, which had included D. She inquired whether there had been any further visits and how those had gone. She was told there had been a visit on 18 December, and that it had gone well. The judge also read from a note which the guardian had made of a conversation with D on 7 December.
37. In paragraph 46 of her judgment, the judge addressed the issues as she saw them. She said: -

I summarise the issues as they now appear to me. Should there be a further interim care order and at least a pre-assessment assessment by Dr. Bradford, particularly in the light of the recent change of heart by D about contact. Should there be a final care order and placement orders in pursuance of the local authority's application? Should there be a residence order now to grandmother, plus supervision to (the second local authority) Grandmother's original wish to a special guardianship order could not be made at this stage in any event as the necessary report has not been prepared.

38. It should be recorded that Dr. Bradford had given evidence to the judge. He had not, however, been involved in the case since his report in May 2006, and his evidence to the judge was limited.
39. The judge then proceeded to a detailed analysis of the evidence. Having done so, she proceeded to her reasoned conclusions. She described the case, rightly in our judgment, as "particularly difficult and worrying". She rejected the maternal grandmother's application for an adjournment in paragraphs 107 to 110. As paragraph 107 is criticised by Miss Judith Rowe QC for the maternal grandmother, we will set out this paragraph, and those which immediately follow it, in full: -

107. Should there be a further adjournment for further assessment by Dr. Bradford as I am urged to consider on behalf of grandmother and supported by the parents? The recent successful contact between D and his grandmother has led me to give particularly anxious consideration to this question and if counsel, who had not addressed me on the impact of that, do wish to say anything to me, perhaps, in due course, they can do so. But my view subject to that is that the time has come when it must be recognised that the prospects of a secure placement with grandmother which will meet the needs of all three children, who are to remain together, are remote. Why is that? It is because D's consistent wish not to live with her remains. Clearly he would wish to have contact with her, but he has not at any stage consistently stated that he would like to live with her. IN those circumstances the prospect of a successful placement of D at his age with his grandmother is, as I have already stated, remote. To force him to move to (her location) would simply not work. If that is the case for D then it follows that it must also be the case for J and C since everyone agrees that these three children should be placed together and to consider separating them would make the prospect of promoting their welfare in the future more difficult since their sibling links are the one consistent factor in their lives.

108. Grandmother has undoubtedly put enormous effort into attempting to provide a good prospect for these children. She had done all that is required of her, save perhaps for continuing to involve, for a limited period of time, DB. It is not her fault that the repercussion of the problems for these children of events when they lived with their parents, particularly for D are such the prospect of a placement with her being successful remain distant and uncertain. These children should not wait further for that uncertain prospect.

109 There is no certainty in adoption or indeed in long term fostering. D is at an age now when adoption becomes more difficult and the prospects of success more limited. J is also approaching that age. A placement within the family would undoubtedly had been to their advantage if it had a reasonable prospect of success in their time scale. But I am satisfied that if these three children were to move to live with their grandmother the resolution of D's problems would not occur in a time-scale which would meet his needs, nor enable the placement to succeed. It is particularly unfortunate that one factor is the lack of resources that would be available in (the area of the second local authority) but that is not in any way a determining factor.

110. It follows that I conclude that an adjournment for a further assessment is not appropriate.

40. For the maternal grandmother, Miss Rowe focused her attack, which was moderately stated and skilfully advanced, on the proposition that the judge had given too much weight to D's stated wishes, and whilst properly directing herself that his wishes could not be determinative, had then fallen into the trap of allowing them to become so. The consequence, Miss Rowe submitted was that the judge had failed to balance against D's stated wishes (insofar as they were consistent) the impact on J and C of giving predominance to those wishes.
41. The judge, Miss Rowe added, had, as a further consequence failed to give sufficient weight to the maternal grandmother's dedication and commitment to the children. The judge's concentration on D's wishes had also led her to give inadequate weight to the uncertainties in the local authority's plans for the children. There was no guarantee that these children would find prospective adopters or even long term foster carers. Miss Rowe painted a graphic picture of children in limbo, living for an indeterminate period with well-meaning but unsuitable foster carers. Against that, she argued, was the modest proposal that Dr. Bradford should be invited to re-assess, and that in the inevitable period of waiting through which the children must now pass, the time should be constructively used to see if, with proper advice and appropriate support the placement with the maternal grandmother could be reactivated. In short, the judge had permitted the wishes of D to prevail over the best interests of all three children, and had given insufficient weight to the importance for the children of remaining within their natural family – as well as their fundamental right to do so.
42. Although we have compressed Miss Rowe's elegant and powerful argument within three paragraphs, we mean thereby no disrespect either to its cogency or to the skill with which it was advanced. Indeed, we go so far as to say that if paragraph 107 of the judge's judgment, which we have set out at paragraph 39 above stood alone, we would think the appeal well founded, and the judge's exercise of discretion flawed. Plainly, although it was common ground that the children should remain together, if the only factor driving the judge to an acceptance of the local authority's care plan was an inappropriate reliance on D's wishes and feelings, her conclusion that the maternal grandmother should be excluded as the children's long term carer would be difficult to support. An undue reliance on D's wishes would be unsafe, not simply because they were the wishes of an unhappy eight year old, but because the evidence showed that until he received therapy and support in pursuing a proper placement (and one, moreover, which was properly explained to him) he could not be expected to commit himself to staying with his grandmother, or to withstand any upsets he suffered whilst with her. In addition, of course, the local authority had decided not to tell him what the changed plan involved. No doubt this was for the best of motives, but it is the local authority's conduct in this regard which helps to make a heavy reliance on D's wishes particularly unsafe.
43. We are, however, satisfied that the judge's analysis was more profound, and is rooted firmly in the proposition that, sadly, placement with their maternal grandmother would simply not meet the needs of all three children.
44. For the local authority, Miss Rosein Magee referred us to a number of passages in the judge's judgment which, she submitted, showed that the judge had not decided the case exclusively on the basis of D's stated wishes. We do not think it necessary to set these out verbatim. It is, however, in our judgment clear that in reaching her overall conclusion, the judge weighed a large number of relevant factors. These included the relationship between the maternal grandmother and the children's mother; the unpredictability of the latter, including her on-going relationship with DB, and the fact that this involved the mother spending a significant amount of time with him, thereby raising the likelihood of the children "bumping" into them if the children were living with the maternal grandmother. There was also the lack of support from the second local authority, and the absence of therapy for D in the area in which the maternal grandmother lived. These factors were not determinative, but they were significant.
45. It is also, we think, important to look carefully at the paragraphs which follow paragraph 107 in the judge's judgment. The judge was plainly in no doubt that the maternal grandmother had done, and would continue to do her best for the children. Significantly, however, in our judgment, the judge comments in paragraph 108 that it is not the maternal grandmother's fault that "the repercussions of the problems for these children of events when they lived with their parents, particularly for D are such that the prospects of a placement with her being successful remain distant and uncertain". That, it seems to us, is the point at the heart of this case, and is correctly identified by the judge.
46. In her December 2005 judgment, the judge deals in some detail with the maternal grandmother' history. She herself had been in care. She had a number of relationships, at least two of which had been violent. The judge plainly did not want to be critical of her, nor did she need to be. It was, we think, sufficient for her to express herself as she did. The conclusion she reached about the likely prospects of the placement of the children with the maternal grandmother was, we think a conclusion which the judge was plainly entitled to reach on the evidence. She did not reach it by taking into account factors she should have discounted, nor did any one factor predominate inappropriately. The judge, in our view, conducted the necessarily balancing exercise properly, fully and carefully. The appeal must, accordingly, be dismissed.
47. We add the following. The judge on 27 February will be considering the local authority's revised care plans. We think it a clear indication of the judge's conscientious approach to this case that she is not prepared to part company with it until she is satisfied that the care plans fully meet the children's needs.
48. We agree with the description of the children in their respective care plans dated 18 January 2007 and in particular with that of D contained in paragraph 2.1 of his care plan. We think it very important that D should have the focused therapy identified by Dr Bradford. But we also think the local authority is right to state, as it does, that the children's relationship with their grandmother is important to them. The local authority will thus be well advised to search for long term placements for the children (whether adoptive or fostering) which will enable that relationship to be sustained. Indeed, in the coming months, as the children come to learn about and prepare for what everyone hopes will be their final move, the maternal grandmother may well have a very important role to play as a fixed point in the children's lives. It will, of course, be the role of grandmother, and not of carer, but from the children's perspective, it will be a role of considerable importance.
49. As we commented at the conclusion of the argument, the maternal grandmother could not have done more, and her case could not have been better argued. We understand her disappointment at the outcome. But we hope that, in the children's interests, she will be able to accept it and to work with the local authority to achieve suitable long term placements for the children. It is, we think, very important indeed that she remains "on the scene" and available to the children.
50. Finally, although we have not discussed them, we are grateful for the submissions received from the children's guardian, who supported the local authority. This was a case, we think, in which it was important for the children, through their guardian, to be represented. Since no restrictions were placed on representation, no criticism can be made of the father for wishing to appear by counsel and articulate his standpoint, although in the event we take the view that there was no real point in representation which did no more than support arguments advanced by another party. There was, moreover, even less point in our view in the second local authority spending money for the purpose of conveying no more than a "neutral" attitude. We say nothing further except to comment that the mother was plainly right not to appear or be represented.