England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Recorder Anderson sitting in the Leeds County
Court on 18 December 2008

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/05/2009

Lord Justice Wall :

1. This is an application by Mr and Mrs S, the maternal great-grandparents of a little boy whom I will identify only by the initial K, who was born on 13^th August 2007, and who is thus now rising 21 months. Mr and Mrs S seek permission to appeal against an order made by Recorder Anderson sitting in the Leeds County Court on 18 December 2008. One of the orders which the Recorder made on that day placed K in the care of Wakefield Metropolitan District Council (the local authority) pursuant to section 31 of the Children Act 1989 (the 1989 Act). It is, however, apparent from her judgment that the Recorder, on the same occasion, also made a placement order under section 21 of the Adoption and Children Act 2002 (the 2002 Act). In the process, she dispensed with the consent of K's parents to such an order, as she was required to do: - see section 21(3) (b) and 52 of the 2002 Act.
2. Mr S points out that the care order is dated 16 December 2008, This, he told me, was the first day of the three day hearing which culminated in the care and placement orders. In my judgment, the incorrect date on the care order is plainly a slip which needs to be corrected, but that nothing turns on it.
3. I heard oral argument from Mr S, supported by Mrs. S on 30 April 2009. At its conclusion, I decided that I should put my decision into writing, which I now do. I would, however, before doing so, like to repeat my apologies to Mr and Mrs. S for the fact that the application was listed at 10.00am, a timing which required them to get up and 1.30am and to leave home at 2.00am to drive from Yorkshire in order to be in good time (which they were) for the hearing. Whilst as a lorry driver such a feat may mean less to Mr S than it would to other men of 60, it was, I appreciate, inconvenient for them both, and, in the fraught circumstances of this case, I am grateful to them both for their calm and good humour.
4. There is a great deal about the background to the case which I do not know. I have, however, come to the conclusion that I can decide this application without making any further enquiries. What I do know is that the local authority took care proceedings; that the threshold criteria for a care order under section 31 of the 1989 Act was conceded; that neither of K's parents was in a position to care for him; and that the decision for the Recorder was, accordingly, the welfare decision about where, with whom and under what (if any) order of the court K should live. I also know that Mr and Mrs S were represented at the hearing before the Recorder by counsel, who clearly made forceful submission on their behalf to the Recorder. K's father, although represented, played no part in the proceedings: similarly, K's mother was in a similar position, although she had given instructions to her solicitors, and supported the application make by Mr and Mrs S.
5. At the time of the hearing before the Recorder, K was living with Mr and Mrs. S pursuant to a previous order of the court. He has since been removed from their care and is now living with foster carers with whom he was living prior to June or July 2008, when he was placed by the court with Mr and Mrs S for what appears to have been a trial or "testing" period. The Recorder's view – which appears to have coincided with that of the guardian and the local authority was that K's mother would not be in a position to care for him either in the immediate future or in the long term, and that, moreover, she posed a risk to him. That position contrasted sharply with the views of Mr and Mrs S who are, naturally enough, loyal to their grand-daughter.

The role and function of this court

6. Before I turn to the merits of Mr and Mrs S's application, I need to explain the role and function of this court to them. Many people come to the Court of Appeal without understanding how limited its powers are. I am dealing with Mr and Mrs S's application for permission to appeal. In order for me to give permission to appeal, the Civil Procedure Rules (CPR) state that they have to satisfy me that, arguably, an appeal by them against the decision of the Recorder "would have a real prospect of success" or that "there is some other compelling reason why the appeal should be heard": see CPR rule 52.3(5)(a) and (b).
7. However, that is only half the story. A long line of cases going back well before the passing of the 1989 Act – all of which are binding on me - make it clear that the Court of Appeal is a court of review, not a court of trial. In other words, the Court of Appeal deals primarily with points of law. It rarely hears oral evidence. It does not assess witnesses or make findings of fact. These are the tasks of the judge at first instance, in this case, the Recorder.
8. What the Court of Appeal does, therefore, is to review what the Recorder did and ask itself the following questions: did the Recorder make any error of law? Was it properly open to her, on the material she had, to make the orders and to find the facts which she did? If the answer to the first question is "no" and the answer to the second question is "yes", that is the end of the matter. The fact that (if I had been the judge at first instance) I might have made a different order is neither here nor there.
9. Finally, in cases involving children, judges in the position of the Recorder have a very wide discretion. This is because, as a matter of law, there is rarely one solution on which everyone agrees. Normally, the court has to make a decision about which of two imperfect solutions is better for a child. This court takes the view that two minds can reasonably disagree in these circumstances without either being wrong, and because the judge on the ground sees and hears the witnesses, that judge's point of view usually prevails unless he or she has made an error of law, or can be shown to have got the case "plainly wrong".
10. This, then, is the backgrounds against which I have to assess whether or not Mr and Mrs S should have permission to appeal.

The Recorder's decision

11. Care proceedings require two stages. The first is that the child must be found either to have suffered significant harm or be likely to suffer significant harm attributable to the care of his parents. These are the so called "threshold Criteria" under section 31 of the 1989 Act. Only if they are satisfied can the court go on to make a care order.
12. In the present case, it is clear that the threshold criteria were satisfied. I do not know the basis upon which they were satisfied, although Mr S hinted on 30 April that his grand-daughter (the child's mother) had taken drugs. It is clear that neither parent was capable of caring for K, and the choice for the Recorder was between what is known as a "kinship" placement (i.e with Mr and Mrs S) or adoption by strangers. That was a stark choice facing the Recorder.
13. In my view the Recorder made no error of law, and she went about her task carefully and conscientiously. In my view, she applied the right tests. The choice she made, sad as it is for Mr and Mrs S was one which was properly open to her. She cannot be said to have been plainly wrong.
14. The Recorder had the great advantage of seeing and hearing Mr and Mrs. S. She was very clear that their commitment to K could not be faulted. She was equally clear that they loved him and wanted to do the best for him. She was clear that at present, although they were "struggling" they were providing him with a healthy environment. Her concerns were with the future.
15. Mr S criticises the Recorder in a number of respects. He says she made medical judgments without any medical knowledge. If that were true, it would be a serious criticism. However, it seems to me that the judge was entitled to make the comments she did about Mrs. S's hearing, which was something she directly observed: as to her sight, it does not seem to me that the Recorder was making a medical judgment. She drew her conclusions from the evidence she had heard. Thus, she had heard evidence from a social worker about a conversation which that social worker had had with Mrs. S in which the latter told the former that she could not take K out as much as she would like due to her poor eyesight. Mrs. S also, it seems, told the judge that she could not read (I take this to mean ordinary print) but that she could make out what is says on the labels of medicine bottles with the aid of a magnifying glass. Nobody, least of all the Recorder, criticises Mrs S for suffering from tinnitus and poor eyesight, but they are highly material factors for the judge to take into account when assessing Mrs. S's capacity to care for K long term.
16. The Recorder went through what has become known as "the welfare check-list" in section 1(3) of the 1989 Act. That is not only a permissible exercise; it is one which it is good practice to follow. Each of the conclusions which the Recorder reached was, as it seems to me, open to her. As I say, whether or not I would have reached the same conclusions is neither here nor there.
17. The Recorder also, it seems to me, got the law right. In paragraph 32 of her judgment she rightly identified one of the principles underlying the 1989 Act, namely "that if at all possible, children should be brought up within the natural family." Mr and Mrs. S must understand that no court would have allowed K to live with them, and no local authority would have agreed to it, if they had not wanted it to work. Sp the Recorder was, in my view, right to dismiss as "plainly wrong" and as "just nonsense" the suggestion that the local authority was in some way "against" Mr and Mrs S looking after K long term. To the contrary, the Recorder was entitled to find that social services were "highly motivated to place K with his extended family if at all possible".
18. I am not going to go through either the Recorder's judgment or Mr and Mrs S's argument line by line. I have no wish to upset them more than they are upset already by the Recorder's decision. No question of age discrimination arises. The Recorder found, for all the reasons she gave, that Mr and Mrs. S could not care for K long term. There was nobody else in the family to do so. It followed that he had to be placed for adoption.
19. Mr and Mrs S must also understand that nobody doubts their commitment to K, or their love for him. Their attempt to care for him has been admirable. They have nothing with which to reproach themselves, and as the Recorder herself observed it will be important for K to learn, as he grows up, that his maternal great-grandparents fought for him and wanted to care for him.
20. Were I to give permission to appeal, or adjourn for the local authority to be represented, I would be setting Mr and Mrs S up to fail. The inevitable result would be that the application for permission to appeal would be refused. Time would be lost, false hopes raised, tensions created and costs incurred which Mr and Mrs S would have to pay. The line has to be drawn now.
21. Counsel for Mr and Mrs S was right when he said there was no basis for an appeal. The question for the judge was what was in K's best interests. The judge has reached a permissible conclusion by the correct route. Her judgment cannot be criticised and an appeal against it would stand no reasonable prospect of success.
22. I am genuinely sorry if Mr S in particular feels, as he told me, that he and his wife were treated "very badly". I do not read the Recorder's judgment in this way. I read it as sympathetic to Mr and Mrs S, but at the same time, realistic and child-focused. Parliament has entrusted these heart-breaking decisions to judges, and judges have to make them. The Recorder was doing her duty, and in my judgment did it conscientiously.
23. The application for permission to appeal must, accordingly, be refused.