England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE-UPON-TYNE COUNTY COURT
IS HONOUR JUDGE CARTLIDGE
LOWER COURT No. GH08P00367

		Royal Courts of Justice Strand, London, WC2A 2LL
		17th November 2010

Lord Justice Wilson:

1. A mother appeals against the refusal of His Honour Judge Cartlidge, sitting in the Newcastle-Upon-Tyne County Court on 19 April 2010, to order a transfer of the residence of her two children to herself. The matter comes before us pursuant to a direction that her application for permission be listed to be heard, on notice to the respondents, namely (as I will call them notwithstanding a degree of biological inaccuracy) the paternal grandparents and the father of the children, and on the basis that, were permission granted, the substantive appeal would be heard forthwith. In the course of the hearing this morning we granted permission to appeal (together with a short extension of time for doing so) and proceeded to hear full argument on the appeal.
2. Today the mother appears by Miss Nolan, who replaces counsel who represented her before the judge, and the grandparents appear by Mr Ainsley, who represented them below. There is no appearance by or on behalf of the father. The solicitors who represent the grandparents also represented him before the judge but they instructed separate counsel on his behalf. In relation to other matters the father has now instructed fresh solicitors and they have explained to the court that, lacking the benefit of public funds, they consider themselves unable to represent him today. They appear not to know whether he is aware of today's hearing; and there is some doubt as to whether he has been properly served with these proceedings. In the light, however, of his peripheral role in relation to the issue before the court, we resolved this morning not to adjourn the hearing in order that his stance in relation to the appeal, easily predictable in any event, should be further clarified.
3. The two children at the centre of the proceedings are D, a boy, who was born on 27 June 2000 and is thus now aged ten, and L, a girl, who was born on 28 October 2003 and is thus now aged seven. The appellant is the mother of both children. But the father to whom I have referred is in fact the father only of D. L's father plays no part in the history. Hence the degree of biological inaccuracy in my reference to the father and to the grandparents.
4. The two children live with the grandparents in Gateshead. They have been living with them since July 2004, when therefore D was aged four and L was aged only nine months. In November 2005 an order was made, with the consent of the mother, that the children should reside with the grandparents and have contact with her; we are told that Gateshead City Council assisted the grandparents in obtaining that order. The order of the judge under appeal was thus in effect an order by which the residence of the children with the grandparents was confirmed. No doubt, however, the contact order made in favour of the mother on 19 April 2010 differed from that which had been made in 2005. It must have been different if for no other reason than that, in about September 2009, the mother moved from Gateshead to live in Harborne, Birmingham. The move clearly impacted upon the feasibility of very frequent contact. The judge's order on 19 April was that, in addition to telephone contact and contact via webcam, the children should spend half of all school holidays, including half-term holidays, with the mother.
5. The grandparents have at least two children of their own, namely the father and G, another son. The father lives elsewhere in Gateshead and the quality of his contribution to the lives of the children has been very mixed. On the one hand there is evidence that both children are fond of him and enjoy his company. On the other hand he is a heroin addict, has been convicted of various offences and has been prone, particularly when short of money or under the influence of drugs, to attend the grandparents' home and there to create violent or at least unpleasant scenes, which have led the grandparents to call the police. Although G appears never to have played much part in the lives of the children, the evidence in relation to him is almost shocking: last year, in a house close to the home of the grandparents, he murdered his girlfriend, with the result that he is now serving a sentence of life imprisonment with a minimum tariff of 12 years.
6. In accordance with a report made under s.7 of the Children Act 1989 by Miss Elliott, a social worker for Gateshead City Council, the judge on 19 April 2010 ordered the grandparents to make the children available for reasonable contact with the father only "as shall be agreed between [the three of them], all such contact to be supervised until the agreement for the removal of supervision shall be obtained from Gateshead City Council…" On reading the order I was unclear about the identity of the proposed supervisors of contact; but it is now clear that, in trusting the grandparents to continue to care for the children safely, the judge trusted them to act as appropriate supervisors of their son's contact. There has never been any suggestion of professional supervision of the contact.
7. In September 2009 the mother married Mr O. In that he was living in Harborne, it was her marriage to him which prompted her move there. In January 2010 the mother gave birth to P, a boy, who is a child of the marriage. Mr O has a long early history of criminal activity but, with one or two minor exceptions, appears in middle age to have turned from a life of crime and, like some other former criminals, to be making an honest living by writing about crime. I guess that the clear written arguments in support of the appeal filed before the mother received the benefit of representation by Miss Nolan are largely the product of Mr O's computer.
8. The mother's relationship with L's father in 2003 was punctuated with serious domestic violence; and such seems to have been the precipitant for the mother's descent at that time into heavy drinking which disabled her from caring for the two young children. Such were the circumstances in which in July 2004 she asked the grandparents to care temporarily for them. The judge appears to have accepted that the basis of the movement of the children into the home of the grandparents at that time was that it would be only a temporary arrangement until the mother should recover her capacity to care for them safely.
9. Inevitably the mother feels most strongly that such a basis for the original placement of the children with the grandparents should, now that she has on any view recovered from her drink problem and is settled in a new home with a husband and a baby about whom Birmingham City Council appear to have no concerns, lead to the restoration of the children to her. Any mother would think in that way. But a single-minded concentration on the future welfare of the children does not, in my view, allow for much if any significance to be attributed to that feature. If, like short-term foster parents, the grandparents had, in the knowledge that the placement was to be only temporary, held back from developing a permanent bond with the children, such might be relevant; but that, clearly, is not the situation in the present case.
10. On joint instructions Dr Cawthorne, a consultant clinical psychologist, was instructed to report to the court on the various adult relationships. Following interviews with the relevant adults and observation of the children at the mother's home in Harborne, Dr Cawthorne wrote a report in which, with considerable force, she criticised the level of conflict between the two families; and noted the report, in particular by Miss Elliott, to the effect that the children, in particular D as being the more articulate, longed for a degree of adult civility between the two families.
11. Miss Elliott's final report, which obviously took the place of a Cafcass report, must have been written in around February 2010 and was an amalgam of her various reports or draft reports. It runs for 38 densely packed pages and, although, with respect to her, it is long-winded and repetitive, it well demonstrates the difficulties with which she wrestled in identifying the children's optimum future home. At one point she stated that she "would recommend that strong consideration is given to the children returning to the care of their mother". A reading of her entire report, however, in which she made many positive comments about the care -- in every sense -- of the children in the home of the grandparents, makes the force of that sentence seem slightly surprising; it is clear from other parts of her report, and according to the judge it was clear also from her oral evidence, that Miss Elliott found it very difficult to make a recommendation. She had been directed to report as long ago as October 2008 and, by February 2010, she had met the adults and the children on several occasions and indeed had visited their primary school and spoken to their headteacher. Miss Elliott reported that D was a friendly and polite boy, popular at school and regarded as talented; that L presented as a happy, cheeky, fun-loving girl; that there was warmth and love between them and the grandparents; that they enjoyed their contact with the mother, had a close relationship with her and liked going to her new home; that all their needs were being met by the grandparents; that the grandparents regarded their schooling as of the utmost importance; that the headteacher was very worried that removal of D from the school would have a devastating effect upon him; that the protracted nature of the proceedings had been highly unfortunate; that D had declared that he no longer wished to communicate with her; and that the level of uncertainty generated by the pendency of the proceedings, on top of the conflict between the adults, was having a detrimental effect upon both of the children.
12. Miss Elliott was, of course, the main conduit for the communication to the court of the wishes and feelings of the children. Her summary of her various interviews with them, conducted both in Gateshead and in Harborne, was that D had been consistent in saying that he wished to continue to live with the grandparents, albeit that he also wished to have substantial periods of staying contact with the mother; but that, unsurprisingly, he felt uncomfortable about being asked to make a choice. Miss Elliott reported, however, that, although L had at one time, with the use of language suspiciously identical to that used by D, said that she wanted "everything to stay the same", she had on other occasions, in particular when in Harborne, stated that she would prefer to move to live there. No doubt it was in such circumstances that Miss Elliott raised, if only ultimately to reject, the possibility of separating the children.
13. The hearing before the judge took place on 6, 7 and 8 April 2010, whereupon he reserved judgment until his oral delivery of it on 19 April. The judge heard oral evidence from Dr Cawthorne, from the mother, from Mr O, from each of the grandparents, from the father and, ultimately, from Miss Elliott, who had listed to the oral evidence previously given. By reason of shortness of time, counsel made their final submissions to the judge in writing; in his final submissions counsel for the mother wisely accepted that the decision which confronted the judge was finely balanced.
14. The judge noted the recent decision of the Supreme Court in Re B (A Child) [2009] UKSC 5, [2010] 1 FLR 551. In the light of that decision he correctly proceeded on the basis that the closer biological link of the mother with the children was not what he described as a "stand-alone feature" but was relevant only insofar as it impacted on where the welfare of the children lay.
15. The decision which confronted the judge was indeed extremely difficult. There were powerful factors pulling each way. For the mother there was much more than the factor, of which I have been somewhat dismissive, about the nature of the original placement with the grandparents. Her counsel stressed to the judge that she appeared fully recovered from her earlier problems; that she had a close, loving relationship with both children; that there were no concerns about the capacity of her and Mr O to care for their baby; that L was biologically related neither to the father nor therefore to the grandparents; that the two sons of the grandparents had become the reverse of decent citizens; that the father was at large and still prone to approach the grandparents' home and to cause unpleasant scenes; and that the grandparents were in their sixties and might find it difficult to continue to care for the children for up to the next 11 years.
16. In favour, however, of the continuation of the residence of the children with the grandparents were the factors that, in the event, the children had lived for so great a proportion of their lives with them; that their relationships with the grandparents were close and loving; that, notwithstanding the unpleasant distractions caused by the father and in the past also by G, the grandparents had succeeded in bringing the children up as happy and well-adjusted; that the reports by the school to Miss Elliott were very positive; and that, while L was more ambivalent, D, who was the older and had attained an age at which his views were of considerable significance, clearly wished to continue to reside with them.
17. The judge crafted his judgment by reference to the welfare checklist in s.1(3) of the Act of 1989. In relation to their emotional needs, highlighted in s.1(3)(b), the judge made an important finding. He said:

"After listening to mother and Mr [O] I became extremely concerned at their ability to cater in a sensitive way to a child's emotional needs."

He then gave examples of his concern. He criticised the fact that, about a year previously, the mother had told L about her true paternity (and apparently about the deficiencies of her true father) in circumstances in which she had not informed the grandparents in advance that she proposed to do so. He criticised an insensitive text message which the mother had recently sent to D after he had run away from her during a period of contact. He criticised the failure of the mother and Mr O to arrange for the children to speak by telephone to the grandparents during a period of contact. The judge concluded:

"I suspect that sooner or later, and probably before too long, mother's views will force her to limit or cancel contact if the children were to reside with mother."

Although it was expressed in terms only of suspicion, his conclusion was on any view of substantial importance. He then went on to appraise the grandparents as having a greater understanding of the needs of the children than the mother or Mr O. In the end he stated that he disagreed with the recommendation of Miss Elliott, which, in his view, had, when first advanced, attached too much importance to the biological status of the mother and from which, in her oral evidence, Miss Elliott had, at least in terms of emphasis, substantially retreated. The judge concluded that in his view the welfare of the children required that they should not change residence.

18. Miss Nolan, briefed at very short notice on behalf of the mother, makes five submissions on her behalf. She makes them with a clarity and an economy for which she deserves much praise.
19. Miss Nolan's first point is to refer to the ages of the grandparents, namely 63 in the case of the grandfather and 66 in the case of the grandmother. She complains with force that, at any rate in his judgment, the judge never addressed their ages and therefore never addressed the fact that, were L to remain in their household until adulthood, the grandfather would by then by 74 and the grandmother 77. Surely, says Miss Nolan, the judge should at least have considered whether, by virtue of their ages, the grandparents would have the capacity effectively to cope with the care of D, and in particular perhaps of L, in adolescence. Miss Nolan refers us to a passage in Miss Elliott's report in which she states that, while both grandparents appear to be well and able to care for the children, they might develop health difficulties in the future and, equally, the children might make more complex demands upon them. But such were considerations clearly addressed at some length during the long hearing. Mr Ainsley, for example, refers us to, just as in his final written submissions he reminded the judge of, Miss Elliott's own statement in her oral evidence that she had never had concerns about the capacity of the grandmother to meet the needs of L, past, present or future. The unfortunate absence of reference to age in the judgment in my view reflects the fact only that, in the end, the issue did not significantly concern the judge; and I am persuaded that, in the light of the evidence, including that of Miss Elliott, which he had heard, he was entitled not to harbour significant concerns about it.
20. Miss Nolan's second point relates to the absence of a biological connection between L and the grandparents; and from such absence Miss Nolan seeks to place a question-mark against the capacity of the grandparents to serve L's emotional needs. In the light of the fact that L had resided satisfactorily with the grandparents almost throughout her life and that there was no shred of evidence that, by reason of the absence of a biological link, they had, for example, treated L differently from their treatment of D, this strikes me as a difficult point even for the excellent Miss Nolan to bring to life. Indeed in her long report Miss Elliott stated:

"At present [D's] and [L's] physical, educational and emotional needs are being met by paternal grandparents… there are no concerns regarding the care [which they] have received from their paternal grandparents." (Italics supplied)

It was, of course, the mother's management of the disclosure to L of her paternity which was criticised by the judge as having been of disservice to her in emotional terms, and, at the end of all the evidence, it was the concern of the judge that the mother and Mr O generally lacked an ability to serve the emotional needs of the children which figured prominently in his judgment.

21. Miss Nolan's third point relates to the risk posed to the children by the father on the occasions when he has entered, or sought to enter, the home of the grandparents and has there caused a degree of disturbance. This is a feature about which any mother, and no doubt any court, would harbour considerable concern. It cannot be said however that the judge failed to address it. He reported Miss Elliott's statement that on five occasions early in 2010 the grandparents had called the police because the father was causing trouble at their home. Miss Nolan is at pains to make clear to us, just as her predecessor was apparently at pains to make clear to the judge, that the mother does not seek to attribute the sorry present circumstances of the father (and, for that matter, of G) to any deficiency in the parenting administered to them by the grandparents. Now through Miss Nolan she simply stresses the physical and emotional danger which the children face as a result of the sometimes malign behaviour of the father outside, and indeed occasionally even inside, that home. In the end, however, the judge was clearly persuaded not to make this concern crucial to his determination; and, in taking that line, he had the benefit of the appraisal of Dr Cawthorne as follows:

"Whilst [the grandparents] have experienced problems with the anti-social behaviour of their son, there is no evidence to suggest that they pose any direct risk to the children, and professionals agree that they have been meeting the children's needs appropriately."

22. Miss Nolan's fourth point is a challenge to the judge's finding, in my view almost devastating, that, were the children to move into the home of the mother, she would sooner or later, and probably before too long, limit or even cancel the contact of the children with the grandparents. In the light of their central importance in the lives of the children for six years, a truncation or indeed elimination of contact with them would clearly be a recipe for substantial emotional harm. But, as I put to Miss Nolan this morning, how can we, in this court, replace the conclusion of the judge in that regard, reached, as it was, following close study of Mr O and in particular of the mother in the witness box? Indeed Mr Ainsley tells us -- and Miss Nolan is not instructed to dispute -- that in her oral evidence Dr Cawthorne suggested that it was likely that the mother would seek to write the grandparents out of the lives of the children and that, in her oral evidence, Miss Elliott had echoed that concern.
23. Miss Nolan's fifth and final point relates to the unfortunate delay between the issue by the mother of her application for a residence order in October 2008 and its final determination only in April 2010. Miss Nolan's instructions are to complain that the further status quo of the lives of the children with the grandparents built during that long period must have contributed to the dismissal of her application; and that in that regard she and indeed the children had been denied their entitlement to a fair hearing within a reasonable time, pursuant to Article 6 of the European Convention on Human Rights. There is no doubt that the delay in the determination of the application was extremely unfortunate: I have already referred to Miss Elliott's view of the extra strain which it had placed upon the children. Miss Nolan's point, however, was not made by her predecessor to the judge; so it is unsurprising that in judgment he failed to chart for us the difficulties in the progress of the application. We do know that, during the eighteen months of its pendency, there were a number of interlocutory applications, largely issued by the mother, in relation to interim contact; but we know too little about the merit or otherwise of those applications to be able to attribute responsibility for the time-consuming distraction which they represented. We are on firmer ground when we remind ourselves of the numerous changes in the life of the mother during that period and of the consequential need for the court to refocus upon her new circumstances: in February 2009 she moved home within Gateshead; in September 2009 she married Mr O and moved to Harborne; and in January 2010 she gave birth to their son. Nor is there, in the end, any substantially different significance to be attributed to a status quo of five years from that to be attributed to one of six years.
24. Had I been sitting in the shoes of the judge, I do not know whether I would have made the order which he did. I do not know because I have not had the benefit of listening to the oral evidence given over three days; nor is there even a transcript, or other note, of that evidence. Although, therefore, I will not hide a degree of personal, almost instinctive, unease about the result of the case, I must remind myself of the handicap under which we here in this court labour. It is for good reason that well-known principles inhibit appellate intervention in decisions of this character; and, notwithstanding the unease to which I have referred, I have no unease in proposing to my Lords that, by application of those principles, this appeal falls to be dismissed.

Lord Justice Aikens:

25. This was a very finely balanced decision for the judge to make. Like Wilson LJ, I do not know whether, if I had been in the position of the judge, I would have made the order that he did. But I am not in the position of the judge. Despite the very clear and attractive submissions of Miss Nolan on behalf of the mother, for all the reasons that Wilson LJ has given, I agree that this appeal must be dismissed.

Sir Nicholas Wall:

26. I also agree that the appeal must be dismissed. In my judgment, this case is governed by the well-known decision of the House of Lords in G and G (Minors: Custody Appeal) [1985] 1 WLR 647. Although the principles, as my Lord, Wilson LJ has said, are well known, it is my view that we are in the classic area of the exercise by the trial judge of a judicial discretion. I propose to cite two short passages from the speech of Lord Fraser which indicate why this court takes the view it does. In the first of them he cites from the well-known decision of Asquith LJ in a previous case called Bellenden (formerly Satterthwaite) v. Satterthwaite [1948] 1 AER 343, in which Asquith LJ said this:

"It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere."

27. Like my Lords, I share the anxiety that, had I been sitting, I might not have made the same conclusion, but that anxiety was recognised as long ago as 1982 by Cumming Bruce LJ in a case called Clark-Hunt v Newcombe  [1982] 4 FLR 482, where he said this, and these are wise words:

"There was not really a right solution: there were two alternative wrong solutions. The problem for the judge was to appreciate the factors pointing in each direction and to decide which of the two was the least dangerous having regard to the long term interests of the children, and so he decided the matter.


Whether I would have decided it in the same way if I had been in the position of the trial judge I do not know. I might have taken the same course as the judge and I might not, but I was never in that situation. I am sitting in the Court of Appeal deciding a quite different question: has it been shown that the judge to whom Parliament has confided the exercise of discretion, plainly got the wrong answer? I emphasise the word 'plainly'. In spite of the efforts of [counsel] the answer to that question clearly must be that the judge has not been shown plainly to have got it wrong."

28. In my judgment, those words apply to this case and, like my Lords, for the reasons that Wilson LJ has given, I would dismiss this appeal.

Order: Appeal dismissed