COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
NEWPORT (GWENT) DISTRICT REGISTRY
Mr PETER HUGHES QC (sitting as a Deputy High Court Judge)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWRENCE COLLINS
MR JUSTICE MUNBY
| In the matter of EN (A Child) KN
|- and -
|(1) CAERPHILLY COUNTY BOROUGH COUNCIL
(4) EN (by his children's guardian)
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Mr Justice Munby (giving the first judgment at the invitation of Lord Justice Thorpe):
"There is a very deep rift between these two families. I formed the view that there is little chance of [E] being brought up with any sense of integration of the two sides of his identity if he remains living with [the paternal grandmother]. [The paternal grandmother] trusts in her own instincts and has a track record of doing things her own way. In the last year she has taken advice and complied with professional thinking.
… There is still time prior to a final hearing for the parties to consider their positions. If conflict remains the hallmark of the interaction between the two families, it is my view that [E]'s needs might not be able to be met within a family placement, despite [the paternal grandmother]'s best intentions."
"on the basis of all the information that I have at my disposal I would have to agree that [E]'s interests would be better met in the long term by an adoptive placement."
But he did identify the possibility of a different outcome if the paternal grandmother was able to "relocate somewhere quite distant, which … breaks all the family ties."
"In summary, the risk of harm to [E] that [his mother] poses is a risk of further physical harm and, arguably of more significance, of long-term emotional harm because of the unresolved conflict between the two families."
"Stranger adoption offers [E] more space to be able to assimilate and integrate the whole story into the rest of his life. [The paternal grandmother] does not have the perception or skills to manage difficulties that will arise in the future."
She added, "He needs a replacement family that will give him a fresh identity."
"However, if it is possible to demonstrate that she can parent [E] away from that influence, and that might mean physically moving away, which I believe is now what she is talking about, then I am more optimistic about the prospect of her being able to parent him effectively and safely."
He acknowledged in answer to a question from the Deputy Judge that there was a risk that it might fail. He summarised his position as being that:
"unless the court is satisfied that [the paternal grandmother] is able to make the break, physical and emotional, has the capacity to set up a new home for [E] in circumstances that are going to be wholesome, protective and safe, if the court cannot be satisfied that that can be achieved soon, if not immediately, then I would have concerns that this was long term a viable prospect, and that an alternative permanent solution should be looked for."
"[E] faces the prospect of substantial disruption in his life in any event. Either he leaves the home in which he has been settled and secure for the last two years, for a future in a new environment with [the paternal grandmother] or he moves to an adoptive placement in a new family. The obvious advantage of the first course over the second is the preservation of the primary attachment to his "mother figure". I have to consider whether the advantage of this is so clearly and sufficiently outweighed by the benefit of an adoptive placement as to justify the latter course.
Having listened to the evidence and considered the submissions, I have reached the clear conclusion that the benefits for [E] of a new future in a replacement family outweigh the advantages of staying with [the paternal grandmother] but in a new environment away from other family members. It is a sad conclusion, which I know will cause a lot of distress, but in the ultimate analysis I have not found it a finely balanced decision. In my judgement the advantages of a fresh start in a new family away from the conflict which has so affected his young life heavily significantly outweigh the benefits of the alternative of remaining with [the paternal grandmother] and the two of them moving to a new area to live.
I prefer the evidence on this aspect of Ms Lawrence and the Guardian to that of Professor Ostapuik. He did not have the advantage which they had of listening to the evidence. He said himself that he would have preferred to interview [the paternal grandmother] and to discuss her proposals with her, before expressing a view. I am not attracted to his suggestion of a period of delay to see whether [the paternal grandmother] can make the physical and emotional break with her home environment and family. It raises the prospect were she to fail of yet further delay, disruption and uncertainty for [E], and would be acutely traumatic for [the paternal grandmother], who would have abandoned her home, her partner, and [her niece], to no avail.
[The paternal grandmother] might well succeed in making the break for a trial period. Much more testing for her, I feel, would be the longer term as both she and [E] get older, away from family and friends. Were the arrangements to break down at a later stage, it would make it much more difficult to provide [E] with a new secure and stable replacement family.
I agree with the opinion Professor Ostapuik expressed originally on the 11th August that [E] needs a fresh start as soon as possible.
I, also, have reservations as to whether the traits in [the paternal grandmother]'s personality identified by the Professor are capable of change. Having had the opportunity to observe [her] giving extensive evidence both in this and earlier fact-finding hearing, they appear to me to be deep-rooted and an important part of her make-up."
"I have no reason to doubt that [the paternal grandmother] genuinely wants to do the best she can for [E] and believes that the solution she is offering, and prepared to make considerable personal sacrifice for, is best for him. I do not believe, though, that she can separate in her mind what is best for [E] from what she wants for herself. As she said in evidence, it is the awfulness of the prospect of losing [E] that is the driving force in her decision. I am satisfied that she simply cannot bear to let go, and that she is prepared to sacrifice almost anything as the price for keeping him. I do not think that she has properly thought through her plans, or the impact they will have on her, on [E], and on important members of her family. I am afraid that it is, in my judgement, a valiant but ill-considered attempt to hold to what she cannot bear to lose."
"I, also, seriously doubt the long-term viability of the proposals, and whether they will achieve their end of protecting [E] from the family conflict. I share the concerns of the guardian that in time [the paternal grandmother] will gravitate back to [her home town]. She proposes to return on a weekly basis, in any event, to see her mother. She will bring [E] with her to allow him to see his father and great-grandmother. If [E's mother] is determined to seek [E] out and to undermine the placement, this could, easily, provide her with the opportunity. The [two] families come from a close knit community. If [E's mother] made it her business to track him down, I suspect that it would not take her long to do so."
"nothing has happened in the short period between the care proceedings and now to alter the conclusions I reached then on the anxious choice between [the paternal grandmother]'s proposals and the alternative of an adoptive placement in a new family."
"The essential point is that there is a serious risk of future harm, possible physical harm, but more importantly emotional harm, unless he is protected from the unresolved conflict between the two sides of his family as he grows up."
"[E] will lose his relationship with his family members through adoption. His relationship with [the paternal grandmother] as his primary carer is particularly important to him, and the care plan recognises this by endeavouring to find a placement in which [E] will be able to have contact with her, four times a year as recommended by Professor Ostapuik. In recognition of the significance of the relationship with [his father] too, it has been agreed that the objective should be to find a placement, if possible, that will allow him to share the contact with his mother."
"I do not consider that it would be appropriate for me to make orders for contact under Section 26 of the Act. The primary objective is to enable [E] to integrate into and become a full member of his new adoptive family. That process will not be assisted by continuing contact with his mother and maternal family, and such contact would not be for his benefit. Different considerations apply to [the paternal grandmother] and [E's father]. If a placement can be found which will allow for contact, limited continuing contact may assist rather than undermine that process. I should emphasise, though, that the contact has to be for the benefit of [E] in his new placement and respect his wishes and feelings. Its purpose is not simply to allow his paternal family to retain some contact with him. In my view appropriate provision for contact is made within the care plan and it is neither necessary nor appropriate for the court to exercise its power to make Section 26 orders."
i) First, and this is her central submission, the Deputy Judge placed too much weight on the risk of future physical harm (which she characterises as illusory), he placed too much emphasis on the risk of emotional harm, and he failed properly to weigh in the balance the long-term emotional and psychological harm to E of being removed from the care of his primary attachment figure (his "mother-figure") and of knowing that he had lost the opportunity to continue to be brought up by a family member because of his mother's intransigence. In short, Ms Henke submits that the Deputy Judge was plainly wrong in striking the balance as he did. His decision favouring adoption was plainly wrong, given that E was so securely attached to the paternal grandmother; and it was unnecessary and disproportionate to any risk of harm that he was seeking to counter.
ii) Ms Henke elaborated this submission by complaining that the Deputy Judge had failed adequately to take into consideration (a) the evidence that the risks had been managed to date; in particular evidence showing that the adults had been able to refrain from expressing their feelings in front of E, that his mother had not sought him out and had never taken advantage of her own mother's unsupervised contact with E; and (b) the evidence showing that the paternal grandmother had insight in relation to risk, wished to receive expert guidance and was, moreover, willing to put physical distance between herself and E's mother.
iii) Secondly, the Deputy Judge failed to give proper weight to the views of Professor Ostapuik, the local authority, E's father and the author of the special guardianship report, views which, it is said, should have weighed heavily with him. Moreover, the Deputy Judge was, it is said, overly and unnecessarily critical of the author of the special guardianship report.
iv) Thirdly, the Deputy Judge was wrong to reject Professor Ostapuik's recommendation. True it is that this would have involved further delay for E, but the comparatively modest delay was nonetheless worthwhile to enable the implementation of the paternal grandmother's plan to be monitored and assessed. The viability of the paternal grandmother's plan could have been tested at the same time as the local authority commenced its search for adoptive parents.
i) First, the Deputy Judge was plainly wrong in making a placement order when the obvious advantage to E of remaining with his primary attachment figure clearly outweighed, it is said, the theoretical benefits of an adoptive placement outside the family. He failed to place adequately in the balance, it is said, the possible lifelong effects for E, practically, emotionally and psychologically, of being placed for adoption outside his family. Inevitably, the arguments under his head reflected in large measure the corresponding arguments in relation to the first appeal.
ii) Secondly, the Deputy Judge was plainly wrong to base his decision on what were said to be deficient reports from a social worker who had no first hand knowledge of the case and a guardian who had seen E only four times.
iii) Thirdly, the Deputy Judge's consideration of the welfare checklist under the 2002 Act was heavily influenced by the corresponding exercise he had previously undertaken when considering the different welfare checklist under the 1989 Act, but he should have considered all the factors under the materially different checklist in the 2002 Act and, moreover, in the context of the facts as they stood in January 2007.
"It would be wrong, though, to lose sight of the wealth of information already available to the court, and the careful scrutiny that the case has received in this and previous hearings."
Ms Henke tries to persuade us (and her arguments under the second and third points overlapped here) that this approach was erroneous both because it failed to take account of the important differences between the checklists in the 1989 Act and the 2002 Act and because it failed to evaluate the impact of the plan for adoption on E "four months further down the line" and nine months since Professor Ostapuik had seen E.
Lord Justice Lawrence Collins
Lord Justice Thorpe