England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOURNEMOUTH COUNTY COURT
(HIS HONOUR JUDGE MESTON QC)

		Royal Courts of Justice Strand London WC2A 2LL
		1 April 2015

1. LORD JUSTICE McFARLANE: This is an appeal brought by the grandparents of two young children following a hearing within care proceedings conducted by His Honour Judge Meston QC sitting at the Family Court in Bournemouth.
2. The judge was embarked upon a hearing which lasted some five days and which had originally been intended to be the final hearing of the proceedings. In the event, the proceedings themselves were adjourned, but the crucial order made was an interim care order by which the judge sanctioned the immediate removal of the children from the care of the paternal grandparents, with whom they had been living for some time. The judge's decision was announced on Friday, 30 January 2015. Judgment was not handed down until the afternoon of the following Monday, 2 February. I will return to that short episode around the handing down of judgment in a moment.
3. The children at the centre of these proceedings are a girl, L, born on 6 August 2009 and therefore now five and a half years old, and a boy, J, born on 2 December 2010 and so some four years and a quarter of age. They had the misfortune to be born to parents who compounded the difficulties that they had in terms of their own personalities and intellectual make up by sustained use of Class A drugs and alcohol. The life that the children lived in the care of the parents, it is accepted within the proceedings, was profoundly harmful. As a result of the intervention of the court, the children have been protected from care by their parents for some time.
4. In fact the parents separated in October 2012, and from that time onwards J, the younger child, then aged nearly two, moved to live with the paternal grandparents with the father, although it is plain that the father continued to be a primary carer. L joined J in that home in April 2014, when the father also removed L to his parents' home. The care proceedings were issued a month later, at the end of May.
5. The threshold criteria are accepted to have been established entirely because of the care, or lack of care, provided to these two young children by the parents. The judge summarised the elements of the threshold criteria as follows: (a) the volatile relationship of the parents; (b) the parents' drug use and the father's alcohol use; (c) their chaotic lifestyle; (d) the mother's learning disability and the impact of this upon her ability to parent; (e) the father's history of offending and "anger issues"; and (f) the parents' history of depression. The problem for the court, therefore, was not to identify the harm that the children had suffered, but to consider how they could best be cared for in the future, and within the family the only candidates to provide a long term home for the children were the paternal grandparents.
6. The case before the judge, by the time it came on for hearing, had the benefit of input from a number of assessment processes. In particular the social worker had conducted a thorough assessment, ostensibly under the auspices of a special guardianship application. There was separately a short term further independent assessment of the grandparents' parenting capacity. In short, the task of caring for these two damaged children was not at all easy. As a result of their experiences in the care of the parents, they had shown a marked tendency for disturbed behaviour. The chaotic lifestyle they had had required additional levels of parenting prowess over and above even what normally children would require.
7. It is said by the Local Authority and the guardian in the course of their evidence to the judge that what these children now required was "reparative" parenting and the focus of the hearing before the judge, and no doubt the final hearing in this case, will be upon the question of whether these grandparents, whose willingness to look after the grandchildren is not in doubt, have the ability to provide just the level of parenting that is needed.
8. The Local Authority's case before the judge was straightforward. They submitted that there was now sufficient evidence about the grandparents and their potential to meet the needs of these two young children for the court to conclude, as the Local Authority had already concluded, that the grandparents simply could not meet the children's needs. The Local Authority therefore submitted that the grandparents should be ruled out as potential long term carers at that stage, January 2015.
9. However, because the Local Authority's detailed knowledge of the children's personality make up, day to day, hour to hour behaviour was limited, because the children were living in the home of the grandparents and the Local Authority did not have as it were fly on the wall information about the children's behaviour, the Local Authority was unable to tell the court what its final care plan was for each child. Particularly, the Local Authority had no clear information upon which to decide whether or not the two children could live together long term in one home. Secondly, the Local Authority needed more understanding as to the children's make up and behaviour to decide the all important question of what category of home was required. Should it be long term fostering or adoption?
10. So the Local Authority argued before the judge that the judge should at that hearing make findings which ruled the grandparents out as long term carers, and make an interim care order, allowing the proceedings to carry on, so that the children could be placed in a special foster home where the foster carers were skilled at both providing high level parenting to the children but also assessing and monitoring their behaviour so that a database of information about the two children could be built up. The Local Authority considered that some 12 weeks would be required for this foster care process to yield sufficient information to produce a care plan.
11. So the Local Authority argued, and the judge agreed, that the final decision as to whether a care order with long term fostering should be made, or the court should be asked to consider authorising the Local Authority to place either or both of these children for adoption, should be adjourned, and a date for that hearing has now been fixed for the end of May. The position of the Local Authority was supported by the children's mother and the maternal grandmother, and also, importantly, by the children's guardian. It was opposed by the paternal grandparents and by the father.
12. In the event, it is plain that Judge Meston did not find this an easy case to determine. We have the benefit of a very full judgment from the judge, in which he distills the evidence about the paternal grandparents in some detail. He was invited to make some 12 separate findings about the grandparents which the Local Authority submitted would lead him to the conclusion that they should be ruled out. However, the judge did not feel able to make most of those findings in the terms sought by the Local Authority. He identified a lack of evidence on some aspects and considered that some aspects, such as the level of cooperation that the grandparents could offer to the Local Authority, required further time to be observed before a concluded view could be taken. So the judge declined the invitation offered by the Local Authority to rule the grandparents out as long term carers at that stage. Therefore at the final hearing in May the judge will be giving active consideration to whether or not the children should live long term with the paternal grandparents.
13. The judge, however, did accede to the Local Authority's application for an interim care order with respect to both children, on the basis that they would be immediately removed from the grandparents' care and placed in the bespoke foster home that I have described. It is against that decision, the interim care order, that the grandparents now appeal. They come to this court having issued their notice of appeal very promptly, and following a grant of permission to appeal which was made by me on 13 March 2015.
14. Before descending to the merits of the appeal itself, it is necessary to dwell for a short time on the procedural progress of the appeal and in particular upon the paternal grandparents' application for a stay of the interim care order to allow them to issue papers in the Court of Appeal and make application to this court for an extension of any stay until at least the permission to appeal application could be determined.
15. The sequence of events is that the judge, as I have indicated, announced his decision to make the interim care order on Friday, 30 January, but did not hand down his judgment until it was circulated by email to the advocates shortly after 1 pm on Monday, 2 February. On the application of counsel, Mr Mark Elliott, who has conspicuously and very effectively stood up for the interests of the paternal grandparents in these proceedings, the judge granted a stay on Friday, the 30th until 2.30 on Monday, 2 February. It became clear during the course of the morning of the Monday that preparation of the judgment was to an extent delayed and the judge therefore extended the stay to 3 pm on that day.
16. At the hearing which took place shortly after the judgment was circulated -- and I should indicate for these purposes the scale of the judgment, it runs to some 31 closely reasoned pages and amounts to 120 paragraphs -- the judge was asked to extend the stay until 3 pm on the following day, 24 hours later. However, the judge declined to do so and was only prepared to extend the stay until 4 pm on that day, 2 February. Counsel, Mr Elliott, those who instruct him and his clerks, were engaged in a process of trying to make contact with the Court of Appeal in order that their application for a further stay might be considered by this court. They were told that such an application could only be entertained if a formal notice was filed, and it simply was not possible for them to get the paperwork in order by 4 pm, when the judge's stay expired.
17. The Local Authority were mindful of the procedural and professional difficulties that I have described, and they in fact allowed a further hour's extension to 5 pm, but at 5 pm on 2 February, the children were removed from the paternal grandparents' care. At shortly before 7 pm, Mr Elliott was able to make an oral application to the out of hours Lord Justice on duty on that night, but by then the children had been removed and the stay application fell to be considered in the colder light of day subsequently, and on that basis it was considered by me on 7 February, when at the same time I initially refused permission to appeal, and so the question of a stay did not arise.
18. I go through that procedural chronology for this reason: Mr Elliott as his fourth ground of appeal complains that the sequence of events and the limited stay granted by the judge was profoundly unfair to his clients, and also I think his submission is that it was not a procedural course which was in the best interests of the children. It effectively prevented an application for a stay being made to this court until the children had been removed.
19. In short terms, I think Mr Elliott's point is very well made. This was not a case, happily, where the children were in any situation which could be described as immediate risk of physical harm. There was no emergency in that sense. The children had been living for a very substantial period of time in the grandparents' home. The grandparents, we have been told, despite some concerns on the part of the social workers to the contrary, had not behaved in any unreasonable or worrying way in the intervening period between the Friday, when they heard that the order was to be made, and the Monday when judgment was handed down.
20. From the perspective of this court, it is difficult to see why Judge Meston felt unable to grant a stay of sufficient length to enable an application to be made to this court. It is well known, and has been the subject of judicial comment by judges of this court over a significant period of time, that judges at first instance, in a case which does not have the characters of a 999 emergency, should be encouraged to establish a short but reasonable stay to their orders in cases such as this so that an application can be made to this court. Judge Meston, hearing the case as he was on a Monday, might reasonably have contemplated a stay measured in the length of two or three days to allow an application to be made to this court as I have described, and not to do so seems to my eyes to be entirely unwarranted.
21. It is not -- I do not think Mr Elliott argues it in this way -- a ground of appeal that would lead me to hold that the judge's overall order about the making of the interim care order should of itself be set aside, but insofar as I need to, I would agree entirely with the criticism of the judge's process that is made in ground four.
22. Moving now back to the merits of the case, Mr Elliott's appeal is in attractive and straightforward terms. He submits that there is no logical connection between the first part of the judge's judgment, in which he declines to rule the grandparents out, and his subsequent decision to sanction the immediate removal of the children.
23. There is no dispute between the parties as to the legal requirements that the judge had to contemplate before making an interim care order which would lead to the immediate removal of children. The judge himself summarised the law at paragraphs 95 to 99 of his judgment, and no criticism is made of that summary. The principal authority is the well known case of Re L-A (Children) [2010] 1 FLR 80, in which this court made it plain that the decision to make an interim care order must turn firstly upon there being circumstances which necessarily cannot await the final hearing of the case, but secondly, and this is the important point, separation of children from their current family carers is only to be ordered if the child's safety demands immediate separation.
24. The judge also reminded himself that in the case of Re GR (Care Order) [2011] 1 FLR 669, Lady Justice Black had stressed that the test that a Local Authority must pass in order to achieve an interim care order in these cases is "of a very high standard". Mr Elliott's submission is simply that the evidence in this case fails to get to that point.
25. Initially, it might have seemed from a reading of the judgment that the judge categorised the circumstances in these proceedings to be to a degree in a different category from the ordinary interim care order decision. The judge referred to a decision, Re B (Children) [2010] EWCA Civ 329, in which the Court of Appeal approved a course which prevented the child being placed in the care of the mother for a temporary period to allow an assessment to take place. However, no party before this court argues that this was the course that the judge adopted in these proceedings, and a closer reading of the authority in Re B indicates that the child had not been in the care of the mother at all, that the mother and her role as a parent had founded the basis for the threshold criteria being met in that case, and for those reasons it was not a decision which is at all on all fours with the present case.
26. In addition, it is plain that Judge Meston in the course of his judgment considered that the plan to have these two children assessed in a neutral venue with skilled foster carers was a helpful step for the Local Authority to take. It would provide helpful, vital, information for those charged with drawing up any plan for the children's future. It would also, if the grandparents were to become once again the full time carers of the children, give the grandparents much needed information about the sophisticated needs of these young children.
27. But again, it is plain on a reading of the judge's judgment, and it is the submission of the Local Authority and the guardian in this case, that the judge did not make the order simply because he favoured the process of assessment that was available; he made the order, it is submitted by those who oppose the appeal, because he considered that the test of "safety demanding immediate separation" was met.
28. It is therefore necessary to see what the judge did or did not say about the level of harm to which the children were currently exposed in the grandparents' home. Before descending into detail, it is helpful to summarise the case that is put by the Local Authority and the guardian. They do not assert that the grandparents themselves are fresh sources of significant harm to the children.
29. The case that is put is that these children have been profoundly damaged in an emotional and psychological way by the experience that they have previously lived through, and that in the care of the paternal grandparents, the need for enhanced parenting is not being met, and that despite their best endeavours the grandparents are simply not able to provide the sort of care that the children need, that the children's behaviour is deteriorating and has been seen to deteriorate over time and contact which is supervised at times when the mother has observed them, and also more generally when observed by social workers. The Local Authority's case, to put it in lay terms, was simply that "enough is enough", the time has come when it is no longer in the children's interests to be exposed to further deterioration in their emotional wellbeing.
30. In the course of his submissions, Mr Hand has taken the court to a number of parts of the judge's judgment where he refers to evidence about harm to the children that he has heard from the social worker and from the children's guardian, and to findings that the judge has made. It is not necessary for me to turn to those parts of Mr Hand's submissions which in my view did not advance his case to any great extent, but at paragraph 108 of the judgment, the judge said this:

"The nature of the harm suffered by the children is now clear enough, although the continuing risks to the children are less easy to measure; but in my judgment the risks are correctly seen to be significant, particularly if the children's needs are not properly understood and managed by the grandparents, and particularly if the father is not seen by them as a source of risk, and/or if the conflicts between the two sides of the family remain or revive. The father's hostility to the mother and their immature relationship was a striking feature of the evidence. The concerns about the grandparents' attitude of the social workers is another worrying feature. Only further assessment will show whether the grandparents have developed, or can develop, some insight which can be put into practice."

The judge had already made findings in a number of places about the need for the children to have enhanced parenting. He said at paragraph 107:

"They are also said now to require reparative care, with a high standard of skill, insight and consistency."

31. Looking back to an earlier stage of the judgment, in paragraph 92, the judge there lists the findings that the Local Authority sought in relation to the grandparents. Most of those are not directly relevant to the issue of harm to the children now, but the judge does say this at subparagraphs 9, 10 and 11:

"(9) The Local Authority point to the deterioration in the children's behaviour since September shown by the mother's statement, the contact records and the school reports.

There is no doubt that there have been serious problems in the children's behaviour which was noted by almost all the professionals. As was said by the social worker, it was not suggested that the grandparents have been the cause of this behaviour but that their ability to manage it is limited. As was said by RP, J has sought attention by a level of negative behaviour which is not normal for the behaviour of a four year-old, and she described his behaviour as escalating without strategy and routine.

(10) The Local Authority contend that the paternal grandparents struggle to set appropriate boundaries for the children. In the parenting assessment J was noted to be violent to L without there being any reprimands or other consequential for his action. In general his behaviour is challenging.

Clearly the behaviour of J, in particular, has been remarkably difficult for the grandparents to deal with, and if it continues there will be serious implications for his development and for the relationship between him and his sister.

(11) The Local Authority submit that the children have suffered significant harm and disruption in their lives to date because of the care provided by the parents, and that the children have a heightened need for stability and consistency and require reparative parenting. L also has special educational needs and requires better than good enough parenting which the grandparents are not in a position to meet. In this respect it is submitted that the paternal grandparents are not in a position to meet those needs for the rest of the children's minorities.

There is no dispute that the children have suffered significant harm and disruption and there can be no dispute that they have a particular need for stability and consistency and require reparative parenting. The evidence overall does raise very real doubts about the abilities of the grandparents to meet the children's particular needs."

32. Of that material, Mr Hand in particular draws attention to subparagraph 10, where focus is placed upon the behaviour of J and the fact that the grandparents find that behaviour remarkably difficult to deal with. Within that subparagraph, I would stress the following; the judge says:

" ... if it continues, there will be serious implications for his development and for the relationship between him and his sister."

Pausing there, that is a plain highlighting by the judge of a profoundly important long term factor in the case. The starting point for any consideration of a child's welfare is that it is normally likely to be in his or her interests to be brought up with and continue to live with any siblings. What the judge identifies at subparagraph 10 is a potential for J's behaviour, if it continues to deteriorate or even be maintained at its current level, to call into question his ability long term to find a home with his sister.

33. The judge, having made those particular findings, moves on in his judgment to cast them within the test of identifying safety requiring immediate separation. The judge says this at paragraph 103:

"At this stage and on the evidence available I do not propose to rule out the paternal grandparents from further consideration as potential carers for the children (or either of them). They are devoted grandparents who have been prepared to take on the children, and they might have taken a more constructive position had they had legal representation at an earlier stage -- and perhaps, thereby they might have obtained more support from the Local Authority. They almost certainly now represent the only chance of keeping the children within their birth family. Although there is considerable force in the criticisms of the grandparents it is necessary to be cautious before deciding that they are not, and could not become, a realistic option (even if that turns out to be an option to be considered for only one of the children). At a final hearing the realism or otherwise of that option is likely to depend upon (among other things): (a) evidence that their attitude to the inevitable constraints and intrusions of Local Authority involvement really has changed, and that any improvements are not superficial -- as the social worker suspected they were; (b) further (and better) evidence about the grandmother's medical condition and prognosis; and (c) the availability of effective measures to protect the children from harm in the longer term."

There the judge, as well as stating that he is not ruling the grandparents out, does identify serious deficits in their ability to care that require attention in terms of further evidence at the hearing.

34. Turning to the harm in relation to the children, the judge says this at paragraph 108:

"The nature of the harm suffered by the children is now clear enough, although the continuing risks to the children are less easy to measure; but in my judgment the risks are correctly seen to be significant, particularly if the children's needs are not properly understood and managed by the grandparents, and particularly if the father is not seen by them as a source of risk, and/or if the conflicts between the two sides of the family remain or revive. The father's hostility to the mother and their immature relationship was a striking feature of the evidence. The concerns about the grandparents' attitude of the social workers is another worrying feature. Only further assessment will show whether the grandparents have developed, or can develop, some insight which can be put into practice."

35. Drawing matters to a conclusion, the judge describes his analysis at paragraphs 113, 114, 115 and 116, before stating his conclusion at 119:

"113. I accept the fundamental arguments advanced by the Local Authority and guardian that it is now essential and urgent for the long term needs of the children to be assessed to inform the final care plans, and that in the circumstances of this case the necessary assessment cannot properly be carried out while the children remain in the care of the paternal grandparents.

114. Secondly, the Local Authority and guardian argue that the evidence of the children's continuing and deteriorating behaviour, not least towards each other, shows the extent to which the children have been damaged in their upbringing and shows the limited ability of both paternal grandparents to understand and manage the children's situation and needs. In essence the contention of the Local Authority and guardian was that the situation is bad and could get worse; and although there has been no obvious emergency that requires immediate removal of the children, there has been a growing level of concern and the situation is serious and urgent enough to justify such a removal.

115. In looking at the evidence overall including the incidents and difficulties indicating harm to the children and the risks of harm, I have tried to assess whether these are really long term welfare concerns, rather than concerns which involve a current risk to safety.

116. I accept the evidence of the social worker and guardian that things cannot remain as they are. The concerns of the Local Authority are valid and are justified by the evidence. The need to understand, manage and address the problems and needs of L and J and the potential for further damage to them outweigh the arguments for leaving the children with the grandparents in the hope that the grandparents continue to control their attitude to the Local Authority and their reluctance to cooperate, and in the hope that the grandparents can shortly acquire the skills and insight they lack.

...

119. In the light of all the evidence I have concluded that there is sufficient concern about the children's emotional and psychological safety to justify the orders sought for the reasons advanced by the Local Authority and guardian. I have therefore decided that it is necessary and proportionate to approve the proposals of the Local Authority for removal of the children."

36. Mr Elliott in his submissions to the court accepts as a matter of fact that the judge did identify harm of the nature that I have now described, and did seek to cast it in the context of current safety needs, but he submits that the element of harm that is identified simply does not come within what the case law requires. He says this is emotional harm and at no stage does the judge identify why at that date, in January 2015, the children required removal from the home because of the impact on their emotional wellbeing, when that had not been sought at an earlier stage and when the court was going to look at the whole question of the children's future wellbeing only some four months further in the future. He submits that the judge simply did not achieve findings that got as far as identifying the children's immediate safety needs, in emotional terms, requiring removal on that day.
37. I am bound to say, when I granted permission to appeal and when I heard Mr Elliott's submissions this morning, I too could readily identify the dislocation that he draws attention to between the judge on the one hand saying "I do not rule these grandparents out as long term carers," but on the other hand saying nevertheless the children's circumstances require immediate removal.
38. Having now had the benefit of being taken to the detail of the judgment by Mr Hand in the way that I have described, I take a contrary view. The judge declined to rule out the grandparents at that stage for reasons to do with their long term capacity to be carers of the children. For the judge, the jury was still out on the question of whether or not the grandparents could bring themselves to meet the needs of the children long term, and the issues that the Local Authority had sought to identify, which included matters to do with the grandmother's health, the ability of the grandfather to devote himself more fully to the care of the children alongside his laudable and clear desire to work hard in his chosen trade, and other matters, were long term issues that required further investigation.
39. They are, I now accept, separate matters from the immediate wellbeing of the children, and I can see how this experienced family judge, who had become immersed in the evidence of this case over the course of five days, who said that he was considering the test of safety requiring immediate separation, could come to the view that the children's safety in emotional terms did indeed require separation at this stage.
40. For me, the elements of the evidence that I have drawn attention to, that we have been led to by Mr Hand, establish the context within which the judge's decision can be seen to be justified in evidential terms, and also justified as a conclusion. In particular, paragraph 92 subsection 10, to which I have already drawn attention, is striking. The judge there is identifying the status quo in the grandparents' home, where J was behaving in a way that the grandparents found remarkably difficult to deal with, but also in a way which had "serious implications for his development", and which might, if it was allowed to continue and consolidate, pass the point of no return so that the option of this boy being able to grow up in the same home as his sister might be lost, in terms of safety in emotional terms, requiring immediate separation. To my eyes, that point alone would justify the order that the judge made.
41. Secondly, I have already described the approach of the judge and the experience of the judge. Where a judge correctly identifies the legal test, says he is applying it, and says he has the evidence which justifies that conclusion, and is able in the course of the judgment to refer to that evidence, this court should be slow to interfere and say he is wrong. There is no indication here that there was an error of principle in the judge's conclusion, and to my mind he should be given a substantial margin of respect by this court in having conducted the exercise that he said he had undertaken.
42. I appreciate the importance of this decision for the paternal grandparents, this court has been able to bring this hearing on at some speed following the grant of permission to appeal, but for the reasons I have given, my conclusion is that the appeal must be dismissed.
43. LORD JUSTICE RYDER: For the reasons given by my Lord, McFarland LJ, I agree.
44. The judge identified the correct test in principle. He was perhaps less clear in a detailed judgment about his analysis of the findings that he made and the prima facie evidence that existed. This court has, however, been assisted by the submissions of counsel for the Local Authority, the children's guardian, and the appellant paternal grandparents. It is now sufficiently clear that the judge accepted the evidence of the Local Authority witnesses and the analysis of the children's guardian that the children had suffered significant emotional harm in the care of their parents, and importantly that that harm had continued in the care of the paternal grandparents. The behaviour of the children as between each other, in particular from the child J towards his sister, had continued and deteriorated in the paternal grandparents' care, to the extent that one of the risks identified was that as a consequence of their behaviour, the children may have to be separated such that they might not be able to be cared for together by anyone. That was capable of being characterised as a safety question that demanded immediate separation; i.e. to put it colloquially, enough was enough.
45. I too would dismiss this appeal.
46. I add my strong view in relation to the question of the stay. The first instance court in granting a stay must allow this court sufficient time to satisfy the purpose of that stay.
47. LORD JUSTICE CHRISTOPHER CLARKE: I agree with the judgments of both my Lords.