England and Wales Court of Appeal (Civil Division) Decisions

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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2010/208.html
Cite as: [2010] 2 FLR 577, [2010] EWCA Civ 208, [2010] Fam Law 444

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		Neutral Citation Number: [2010] EWCA Civ 208
		Case No: B4/2009/1408

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
(HIS HONOUR JUDGE GRANT)

Royal Courts of Justice
Strand, London, WC2A 2LL

9th February 2010

B e f o r e :

LORD JUSTICE THORPE
and
LADY JUSTICE ARDEN
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IN THE MATTER OF A (Children)

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(DAR Transcript of
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Mr Mark Jarman (instructed by Messrs Bidmans) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
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HTML VERSION OF JUDGMENT
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Lord Justice Thorpe:

This is an appeal against an order made by HHJ Grant sitting in Leeds on 11 June 2009. These are public law proceedings brought by the Leeds City Council in relation to two children, R, who was born on 10 July 1997, and D, who was born on 29 February 2000. Sadly, the children are no longer living with their parents. That is the result of the local authority's intervention with applications for care orders. HHJ Cahill QC dealt with the contested factual issues upon which the local authority relied in order to cross the section 31 threshold. She delivered a judgment on 22 November 2006 in which she found proved most if not all the episodes and facts and circumstances relied on by the local authority. From there there was a period of almost a year before, on a date in October 2007, the same judge made care orders for these two children on a care plan for long-term fostering with continuing parental contact on a frequency of alternate months.

Why then was there a hearing before HHJ Grant in June? It is because there are continuing issues affecting the contact arrangements. The local authority had applied to terminate contact and there is a cross-application by the parents for contact to another child, not the subject of the judgment which we review. What HHJ Grant decided was an application brought by the parents to replace the long-standing Guardian, Anne Buckley, and her solicitor, who had reported to the court on 6 June, some five days before the hearing. The position taken by the Guardian was essentially supportive of the local authority's application but with these caveats: first of all, the Guardian clearly recognised the wishes of R to have future contact and a relationship with his mother. However, that clearly-expressed wish was subject to reassurance that in future meetings his equilibrium would not be upset by anything that his mother said or did. Unfortunately there were occasions in the past where mother's behaviour at contact was judged by the professionals in the case to be unhelpful to R. In relation to D there are different judgments to be made because he is a special needs child, and in any event is a few years younger. But the recommendation of the Guardian to the court was supportive of a future for R and his mother, providing of course that the mother could be relied on to behave with discretion at contact meetings.

So the application put before the judge was squarely on the basis that the Guardian was in conflict with R, for she was not pressing the case as R saw it but the case as she saw it on the balance of the welfare checklist considerations. The application was thus formally put before the court under Family Proceedings Rules 14.12(1)(a). The Circuit Judge reviewed the law and the statutory language and correctly directed himself that there should be no tandem arrangement for separate representation of the child unless the child wishes to give instructions which conflict with those of the children's Guardian, and is able, in the light of his understanding, to give such instructions. HHJ Grant concluded that although R was a bright and articulate child, he had not the maturity to comprehend and weigh all the complex considerations that section 1 imports and to then arrive at a proportionate, balanced conclusion. He went on to say that in his view there was no conflict of interest between the Guardian and the child. That addition was criticised by Ward LJ, who granted permission to appeal on 9 December.

We have had the advantage, not available to Ward LJ, of a full and careful skeleton from Mr Swiffen, instructed on behalf of the Guardian. We have not felt it necessary to call on Mr Swiffen to amplify his written submissions, nor have we called on Mrs Astbury, who represents the local authority. By a letter of 8 January the local authority gave notice to the court that they were essentially resisting the appeal and relying on the reasoning of the judge below.

I am in no doubt at all that the judge was right to rule as he did on this application. There are cases involving children in post-pubertal adolescent rebellion for whom it is very difficult for a Guardian to act. Their position, their wishes, their feelings, their opinions so conflict with an objective view of welfare that there has to be a parting of the ways, and our system generously provides for two distinct and equally constituted litigation teams thereafter. That is an extremely expensive solution, and in present days when the Family Justice system is obliged to seek economy wherever and whenever it can, orders granting separate representation under this rule should in my opinion be issued very sparingly.

This was a perfectly standard situation in which the child's wishes were only an ingredient within the review of the Guardian and only one element upon which the Guardian had to report to the court. It seems that R expressed feelings that accorded closely with the Guardian's professional opinion; namely, that his relationship with his mother should be maintained providing it was safe so to do. The Guardian reported that fairly in her report of 6 June, and I can see absolutely nothing to substantiate the submission of the appellants that the Guardian was conflicted and accordingly had to drop out.

The judge, as so often in these cases, had to exercise a discretion, or take a proportionate judgment, having ascertained and weighed a number of relevant considerations. Not only am I perfectly satisfied that the conclusion reached by HHJ Grant was within the ambit of reasonable judgment, I am quite clear in my mind that it was the right conclusion, expressed in language which, on any overall consideration, is not to be faulted.

So I would dismiss this appeal.

Lady Justice Arden:

I agree, and I have reached this conclusion without reference to the resource implications of separate representations to which my Lord has referred.

Order: Appeal dismissed.