England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHEFFIELD COUNTY COURT
(MR RECORDER OLDHAM)

		Royal Courts of Justice Strand, London, WC2A 2LL
		25th October 2012

Lord Justice Thorpe:

1. This is an appeal from the decision of Mr Recorder Oldham, sitting in the Sheffield County Court on 2 July 2012. He had to decide the future of a little boy named Max, who was just seven months old at the date of trial. The little boy was born into the C family, his mother being Katy, one of four children of Mr and Mrs Trevor C, and the issue before him was whether he should endorse the plan of the local authority to place Max for adoption, using the combination of a care order and a placement order, or whether he should defer any decision, acceding to the submission of the C family that there should be some further assessment of the good quality that they were offering, which had not been fully accounted by the report of the expert jointly instructed to advise the judge, who was a local psychologist. The judge emphatically ruled in favour of the local authority, whose case was fully supported by Max's guardian.
2. So obviously an application for permission to appeal was faced with considerable difficulty. The applicant grandparents cleared the first obstacle when McFarlane LJ adjourned the permission application for further information. They cleared the second obstacle when the adjourned oral application came before Munby LJ. The grandparents were represented by Mr Stuart Leach, who turned Munby LJ from an initial assessment that the case did not qualify, to the grant of permission, which of course was hedged with cautionary words that the grant of permission did not, and should not, encourage the idea that the appeal which he was creating would ultimately succeed.
3. In preparation for this hearing we have had admirable skeletons from Mr Leach, for the grandparents, Ms Ford, for the local authority, and Mr Horrocks, for the guardian. All three counsel have appeared before us today, and again we have benefited from extremely clear and succinct submissions from all three. Mr Leach does not shrink from the submission that the judge was plainly wrong. When elaborating, he identifies the judge's error as having insufficiently considered the virtues and the potential that the grandparents offered Max, and too much exaggerated or overemphasised what were perceived by the local authority to be their failings and their weaknesses. It was common ground that the grandparents had raised two of their four children in an exemplary fashion, with the result that these two, aged I think 23 and 20, were mature, successful and thriving adults. Less successful had they been with the other two children, who both suffer from learning disabilities and both of whom are, accordingly, vulnerable in wider society. So the focus was on sexual boundaries and protection of the young, in understanding what was permissible and what was impermissible in the context of adult relationships or evolving adolescent relationships. There was also some focus on the grandfather's past, which was not free of blemish, and some focus on his brother, who had entered the history, albeit comparatively briefly, in his relationship with his nieces.
4. Mr Leach above all emphasises that the judge has simply fixed on the areas of concern, which were the fundamental ingredients of the local authority case, and failed to bring into the balance, as he should have done, the history of the other two children, who had been such a credit to their parenting capacity. The judgment itself must withstand criticism, and Mr Leach particularly criticises the judge's reference to the achievement of the parents, when he said no more than -- and this is page A50 at line 3:

"Well, I understand that argument. I do not think it is realistic."

Mr Leach also criticises the compression of the judge's conclusion, when at page A53 he simply says:

"Of course I recognise that wherever possible, it is always better for a child to be allowed to grow up in their birth home, but there are cases and I believe this is one where that is simply not a possibility. In this instance I accept the proposal put forward by the local authority that this is a case where, regrettably, there is no real option other than for a final care order to be made and for Max to be placed for adoption."

5. Those criticisms must be weighed in the context of the judgment read as a whole. The judge had noted at page A49, line 11:

"As I said earlier the result of that decision by [mother] was that Max has never lived with his family, and what is now being put forward by them is that there should now be a further period of assessment during which he should live with them and they should have the opportunity of being assessed."

The judge noted that any further delay in taking the difficult decision would be prejudicial to Max, and that had been confirmed by the psychologist when questioned by the judge. Both the expert and the guardian were clear that any delay would be detrimental to Max. So the judge's conclusion that really he had no option was the product of a process of decision-making that recognised all the difficulties that would face the grandparents, and the risks of their failure; and then noted that all they sought was a period of further assessment. Given that that would result in inevitable delay, given that the experts all cautioned against any delay, therefore, as a matter of reasoning, there was no alternative.

6. Mr Horrocks, for the guardian, has also emphasised that it is difficult to see what would be the purpose of directing a further assessment given that there was the central fact that two of the children had matured into successful adults. What would be the scope of an assessment? The history hardly admitted of any further investigation. It was pertinent, it had to be weighed, but there was no case for further assessment. I think that that submission is well made.
7. I think that this is a very sad case, and I think it is to be emphasised that the Recorder's options had by July become very circumscribed. It is the tragic fact that, in the aftermath of Max's birth, the possibility of a placement with his mother, Katy, in a secure setting was rejected. In a sense, that cast a doubt. The judge was not considering whether he should remove, but only whether he should place. The local authority had the responsibility to probe profoundly to see what were the cracks, what were the fractures, the weaknesses, the risks in the broader view of the family and its past.
8. There is then a stage in which the local authority carry out their own assessment in April and arrive at the balanced conclusion that, whilst there were plusses, there were also substantial minuses. That led them to depend upon, or rely upon, advice from the psychologist. The letter of instruction to her was a joint letter agreed by the parties. Her initial report was dated 1 May, the supplement 21 May, and she was clear in her recommendation that Max should not be placed with the Cartwrights. It was not then said on behalf of the family that she had only surveyed half the relevant material, and that accordingly her conclusion was invalidated. It seems that the first suggestion of further assessment was made at the hearing by counsel representing the grandparents and the mother, so that fortified the need for the judge to consider the consequence of delay if he acceded to that submission. That component would have been less forceful if the application for further assessment had been advanced at a case management hearing shortly after the arrival of Dr Berry's report.
9. So in this case, as in many, the judge's choice was circumscribed, and to some extent the outcome was dictated by the history. It is a very sad case, because inevitably the family must feel that not only have they been denied the opportunity of enfolding Max within the family, but they must also believe that Max has been deprived of not only his right, but also all the benefits and advantages that they are convinced he would have enjoyed, had the judge reached the other decision. It is always tempting for an appellate court to wonder whether it might not have decided differently, but the appellate court must always be guarded against substituting its discretion for that of the trial judge, who alone has seen and heard the witnesses, and been influenced by the impression that they have made. That influence is a fundamental part of decision making at first instance, and it is exceptional for this court to conclude that a judge is plainly wrong, particularly where the argument is advanced that he has given too much weight to one relevant factor and too little weight to another relevant factor.
10. So for all those reasons, I would dismiss this appeal.

Order: Appeal dismissed

Mr Justice Hedley:

11. I agree with Thorpe LJ, and add a few words of my own, because clearly the decision is an important one for the family. There is no challenge to the Recorder's conclusion that the threshold in section 31 of the Children Act had been crossed. The issue for him, therefore, was what order to make in the light of that finding. Although the Recorder's task was to find the outcome that was in the best interests of the child, in fact it often amounts to choosing the least worst outcome.
12. By the time of trial, there were only two choices given to the Recorder. One was a further assessment of the grandparents; the second was the final order for placement and adoption. The judge was thus given the choice between finality on the one hand, and uncertainty on the other. Given the emphasis that the statute places on the detrimental effect of delay on a small child, in my judgment a decision in favour of finality was a decision he was entitled to reach.

Lord Justice Lewison:

13. I agree, and feel I have nothing useful to add at this stage.

Order: Appeal dismissed.