England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY
FAMILY DIVISION
(HIS HONOUR JUDGE ATKINS)

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 November 2012

Lord Justice Thorpe:

1. Mr Richard Wilson QC leads Mr Macdonald, who appeared for the appellants in the court below and he has mounted an attack on the judgment of HHJ Atkins of February of this year, following a hearing at the end of January on two substantial grounds. First he says the judge failed to consider as an alternative to a placement order a special guardianship order; and secondly he either failed to consider the making of a contact order in favour of his clients or, if he had regard to it in his discretion, he exercised it wrongly.
2. This is an unusual case involving a little girl who is just four, A, and the parties to the public law proceedings in the Croydon County Court have been the London Borough of Croydon, the mother (who has effectively taken no part), the father, the paternal grandmother and of course A by her guardian.
3. It is a highly unusual case in that A is a hugely demanding child and has been cared for to the most exceptional standards of both achieved excellence and also sacrifice on the part of the carers and that has now been on foot almost throughout her life.
4. It is further unusual in that there is absolutely no dispute from any quarter but that the couple will be A's long-term carers so long as they are able and willing to protect her and promote her interests.
5. So it is quite unlike the ordinary case where the identity of possible future carers under an adoption order is unascertained. There is simply no issue in the litigation but that A's future lies with them, certainly from the date upon which the judge at the end of last year ruled out the father and the grandmother as potential carers.
6. That judgment by the same judge was challenged in this court and permission to appeal refused by Ward LJ. So we have to consider in fairness to the judge his two major judgments, both November 2011 and February 2012, he himself saying that neither judgment should be read in isolation; each must be read as a compliment to the other.
7. So the criticism of the judge below was first considered by the judge himself when he refused an application for permission on handing down his reserve judgment. Mr Macdonald formulated grounds of appeal which were considered by Black LJ and firmly refused on paper, her refusal being very fully explained.
8. The next stage was the oral hearing before McFarlane LJ and that was the first time that Mr Wilson had taken up the appellants' cause. He persuaded McFarlane LJ to grant permission subject to conditions as to amending his notice and his grounds to introduce what was a fresh point, namely that the judge had failed to consider special guardianship as the correct legal frame to embody the local authority's proposals for A's future and, further, to explain why that alternative management had been rejected in favour of a placement order.
9. So this submission essentially is, given that A's future was not in any dispute: what was the proper legal label to attach to that future plan? It is quite obvious that there were only three alternatives. The first was the placement order, the second was special guardianship and the third an order for long-term fostering.
10. So here was the criticism that attracted McFarlane LJ. The judge should not have plumped for one legal frame without explaining why he rejected the most plausible alternative, namely special guardianship. Clearly nobody was going to contend for foster care which would have been inadequate to meet the needs of the circumstances.
11. So that has been Mr Wilson's first and principal submission. It is necessary in weighing it to go back to the first judgment where there is an important paragraph, namely paragraph 39:

"I should mention that although the local authority's current plan is for adoption by the foster carers, the local authority was suggesting that a special guardianship order in their favour would be more appropriate. The foster carers have helpfully provided responses to questions put in writing to them by Mr Macdonald on behalf of the father and paternal grandmother and those responses are at C142 onwards in the bundle. From those responses and the evidence in the case it is clear that the foster carers' priority is to provide consistency and stability for A and that the type of order made by the court is, for them, less important than this. The clear impression is that they will co-operate and work with whatever order the court thinks is appropriate. I am not in fact asked to, nor can i make a final decision about this aspect of the case today, but i make the following observations:

(a) I agree with the evidence of Anna Boyle, that long term foster care is not suitable in this case.

(b) Special guardianship would be a possible solution but has disadvantages. For example it expires at age 18 and would provide less permanency for A than adoption.

(c) Adoption would appear to be the best solution as indicated both by Anna Boyle and by the guardian. As matters stand the only real concern about this is whether adoption may lead to deportation of the father and grandmother as I accept that continuing contact between A and grandmother is important to her and is and is likely to continue to be in A's best interests. On the information I have it does not seem to me that adoption would necessarily mean deportation for the father and paternal grandmother, as the immigration advice refers to 'regular and frequent contact with A (E209). As matters stand, therefore, of the options, it seems to me that adoption is likely to be the best way forward albeit that, as I say that is not a decision that I am being asked to make today."

12. The outcome of the hearing in November was the fixture of a one-day further hearing at the end of January to enable the judge to carry the proceedings to conclusion.
13. So the importance of paragraph 39 of his first judgment is that it gives to the parties a very clear picture of the judge's preliminary view, the way his mind was working.
14. So if the appellant's real case was not placement but special guardianship, they knew that they had to swim against the tide that was running.
15. When the case comes to stage two there was a lot of evidence and submission as to procedural steps taken by the local authority in their administrative capacity; and whether those steps complied with statute and rules. But all that was swept away by Black LJ and endorsed by McFarlane LJ. So the main focus of the second hearing below dissolved.
16. It is very important therefore to see how the case was put for the appellants below. We can see that, because the final submissions of Mr Macdonald have been handed in to us today and we can see particularly the paragraphs between 149 and 159 which show that the thrust of Mr Macdonald's submission was: you must not make a placement order because it would violate the Article 8 rights of father and grandfather to family life. This placement order cannot be made in the face of their continuing involvement with this child. You must refuse the local authority's application which will have the consequence that they will have to reconsider their care plan and perhaps come to you again. That submission failed and it was a submission that allowed no alternative, no fallback such as: if you are against us on that, then at least make a special guardianship order which is proportionate to the child's needs and which would not have the same impact on our client's Article 8 rights.
17. It is quite clear that that submission was not run at the trial. It is quite clear that in his judgment the judge hardly touches upon the question. If we go to his final judgment he considers, as he had considered on the previous occasion, the essential need for the couple to have something beyond statutory protection during her minority.
18. The submission is as attractively presented today as it was presented to McFarlane LJ at the oral permission hearing, but it is essentially a submission without any solid foundation. The judge was not obliged to deal with the point more explicitly, considering that it was simply not a point that had been run before him.
19. The case had been argued by the appellants on a grander scale. I see no valid basis for criticism of the judge. Indeed, had there been some misunderstanding between the court and the appellants as to the nature of their case, then the opportunity was there to raise the asserted, the lacuna in the judgment. It is plain that that was not the line taken by Mr Macdonald when he challenged the judgment at the hand-down stage.
20. I turn now to Mr Wilson's second submission, which in my judgment had greater substance. It is unusual in a case such as this for an agreed position not to be enshrined in the court order. For, as the judge had observed during the course of his first judgment at paragraph 38, the foster carers are providing and have provided an exceptional standard of caring. It is clear on the evidence that the foster carers are committed to A's long-term care and are also very committed to ongoing contact. That was recognised by all to be amongst their outstanding contributions.
21. The judge did turn to consider the possibility of an order in paragraph 43 of his judgment when he said:

"The possibility of an order for contact is raised by the Guardian in her final submissions but was not really explored in evidence. An order for contact is not obviously appropriate here given the foster carers' positive approach to contact but that is a question which I think should be reconsidered at the next hearing and of course contact has to be considered by the court before making any adoption order due to section 46(6) of the 2002 Adoption Act."

22. So at the second hearing we have again the advantage of the written submissions from Mr Macdonald. As Mr Bain has pointed out in introducing his position, nowhere does Mr Macdonald indicate that he is pressing for a contact order for the protection of his clients. Nor, when he comes to set out his effective case towards the end, does he even refer to contact, other than a passing reference in paragraph 155 when he brings it in as part of the indication of a continuing family life between A and her father and grandmother.
23. So when he comes to deal with the point in his second judgment, the judge in paragraph 25 says:

"I should consider whether it is right to make a contact order in the circumstances of this case. I have mentioned the importance of contact, and I very much have borne it in mind throughout, but I am entirely satisfied that a contact order is not justified in this case for a number of reasons, not least that the foster carers have shown throughout that they favour contact between A and the father and paternal grandmother. I am quite satisfied that going to support it; I think an order would be in fact positively unhelpful in the circumstances of this case, whereas leaving it to their discretion, but emphasising, as I do, the importance of that contact and the hope that it will continue in the circumstances, however, a contact order is clearly not in A's best interest and I am not going to make such an order."

24. It is plain from that passage that the judge has recognised his judicial duty. He has carried out a balancing exercise at the end of which he has decided that it is better for the child to make no order. That seems to me to be impeccable given that the only person who had mooted a contact order seems to have been the guardian prior to the first judgment. For the purposes of the second hearing it seems that nobody was particularly pressing the need to make an order. The judge was of course obliged to have regard to the advantages, the pros and cons, but he also had to have regard to section 1(6) of the 2002 Act, which enjoins him not to make an order if it is not necessary.
25. So, although the case has been very attractively argued by Mr Wilson on both fronts, I ultimately conclude that passages and orders that at first sight seem to be questionable are in fact capable of robust defence when proper regard is had to the issues that the parties were urging the judge to decide and the manner in which their respective cases were argued. I therefore see no need to interfere with the judge's conclusions. I would certainly not favour a remission, as suggested by Mr Wilson, for a re-trial of the choice between special guardianship and placement, involving further live evidence from A's carers. That would be a most undesirable course unless we were driven to it.
26. On a proper analysis of the judgment, I see not only no flaw but abundant good sense in upholding the judge below, I would dismiss the appeal.

Lord Justice Rimer:

27. I agree.

Mrs Justice Baron:

28. So do I.

Order: Appeal dismissed