England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		Thursday, 17 May 2007

No of Folios: 43

No of words: 3077

MRS JUSTICE HOGG:

1. This is an appeal brought by a maternal grandmother against a care order made by the family proceedings court sitting at Chatham on 27 February 2007 in respect of three children, A, born on 9 September 2002; ML, born on 30 July 2003; and K born on 1 December 2004.
2. The parents accepted that the Section 31 criteria had been met and that is not in issue. The issue before the court in February 2007 was that the grandmother had made an application for special guardianship and/or residence, and the local authority was seeking a full and final care order in respect of the three children.
3. The three children had been living with the grandmother. K went to live with her in March 2005 and the girls in May 2005. They were removed from the grandmother on 19 December 2006 following the making of an interim care order on 18 December. I am told that the following day the grandmother appealed to a judge of this Division. That appeal was not successful. Removal of the children took place later that day.
4. The guardian has not been present today. The grandmother is now acting in person. She has entered her appeal with well set out grounds of appeal, which she seeks leave to appeal because it was launched out of time and for the full grounds. She failed. I do not wish to criticise her for this. It is unfortunate, but she did not serve the local authority or the guardian until about two days ago. As a result the guardian was not able to instruct counsel, although the local authority has been represented and has dealt with the appeal.
5. Through counsel for the local authority I understand that the guardian has not changed her view from the view she held strongly in February 2007 that these children should be permanently removed from their family and placed for adoption. She would come to court properly supported by a legal team if I requested her to do so. That inevitably would create a delay.
6. She was anxious that the hearing on an application for a placement order should be maintained on 8 June and did not wish to put that date into jeopardy.
7. The net result is that I have heard this appeal without the addition of the guardian. I am fully aware of her position and of the position she maintained in February.
8. The mother is here. She is not legally represented, but I have heard from her. She tells me she supports her own mother and would like the children to be returned to the grandmother's care as soon as possible.
9. The father is not present. The parents are now married, but unfortunately separated. The father shares the mother's view. He would support the grandmother caring for the three children.
10. He unfortunately is not here because there was a sudden bereavement within his family only this week and he did not feel up to facing coming to court and I do not hold that against him. Indeed it is a very difficult time for him.
11. I am very grateful that the mother is here and has expressed her views.
12. The grandmother has expressed her views very ably, if I may say so. She has helped me with her written grounds of appeal.
13. Having said that, when I am dealing with an appeal I have to remember, having reviewed the evidence and heard the parties, that I am only entitled to change the decision of the court below if I am satisfied they were plainly wrong, either in deciding disputed issues of fact or in the exercise of their discretion. I am not entitled to change the decision of the lower court if I felt that I might have made a different order. I have to be satisfied that the lower court was plainly wrong. That is the law. That is where I come from.
14. A significant issue which the grandmother has raised is that it was said by the local authority that on 26 October 2006 she was seen in a car with at least two of the children with her daughter, which was not an authorised situation. Indeed it was made very clear to the grandmother that she should not allow what has been called "Unsupervised contact". In fact it is unauthorised contact. The mother and the grandmother hotly deny the sighting of them.
15. The local authority's evidence came from the then social worker who saw the mother, the grandmother and at least two of the children at the B and B junction in S unexpectedly. Her evidence was believed on the balance of probabilities.
16. It may be that the local authority was wrong. Equally, it may be that the local authority was right. There is sufficient evidence before me to suggest that the Magistrates could have been right in that finding.
17. The grandmother says "No" it was not her. Alibi evidence was provided by Miss T, who has been helping the grandmother today. Her statement was read but not challenged. It runs out by way of alibi between 1.45 pm and 2.00 pm that day. The sighting was at 3.15 pm or a little bit later about 15 minutes drive away from the grandmother's home. Miss T's evidence may have been true but it does not help the grandmother.
18. The parents say that they had travelled from their home, which I am told at that stage was five minutes away from the B and B junction to go to T to sign on at the job centre. They were there at 11.45/11.50 am and then travelled back. Again, there is ample time for them to have been to T and returned home and been collected.
19. The mother validly says to me that it is unlikely that there would only have been two of the children in the car, even if grandmother was at this junction because grandmother always kept the three of them together.
20. The evidence is that the social worker was not certain if the baby, K, was in the car. She did not notice. It is not to say that he was not there.
21. The evidence from the great grandmother was read and indicated that the family may have been at about the time with her at her home. She was not called, she is disabled, and it was not challenged.
22. It was up to the Magistrates to look at the evidence, consider it and make a finding. In my view, there was sufficient evidence available to them to make the finding that they did. I cannot go behind that on that basis.
23. It is an important finding, but not perhaps the key finding to this appeal. There is an important finding in that they then went on to say that there had been unsupervised contact with at least the mother on more than one occasion and with the parents. A had mentioned various things to the experts, the guardian, social worker and her own foster carer, that indicated the parents had been at the grandmother's home unauthorised.
24. Again, there was evidence to suggest that this was what A had said. There is evidence from the guardian that this was a child who did not have a long term memory or the cognitive ability to fabricate. The grandmother says she is confused.
25. All I can say is there is sufficient evidence before the court upon which they could make that finding and I cannot go behind that.
26. The implication is that the grandmother has failed to put the children's needs first. In that failure she was putting her and her daughter's needs before those of the children. She was putting the emotion needs of the children behind those of her daughter and her own. The mother/grandmother relationship is accepted to be volatile, or has been volatile, and that there could be distressed caused to the children if such volatility was seen.
27. Those are the consequential findings that the Magistrates came to based upon their finding of fact. They were entitled to make those findings. They are important findings. There are other important findings which I have to consider.
28. The grandmother has cared for the children since late spring of 2005. She has provided the basic, physical, daily care of those children. She has fed them, taken them to school, attended the appointments. In those abilities she has shown she can provide basic care. She has been described as "Functional, mechanical" in what she does. In that sense no one has sought to criticise the grandmother in how she physically cared for the children. That is not the issue.
29. The issue was whether she could parent the children adequately and provide for their emotional needs. There was strong evidence to suggest that she lacked that ability. These are damaged children because of their earlier experiences with their parents. That is accepted. When one has damaged children one does need careful parenting, not only to provide the everyday physical care but for the emotional care and care to repair the psychological damage that has previously occurred.
30. The evidence before the Magistrates came principally from a psychologist, Dr Paula Winter. She wrote three long careful reports which I have had the benefit of reading. I have also read a transcript of her evidence in which she cast consider doubt upon grandmother's ability to provide for the emotional needs of these children.
31. The guardian from an early stage was not overly supportive of the placement with the grandmother. She expressed throughout and was very powerful in her evidence and her final report that the grandmother, while committed and capable in the functional sense, simply could not change enough to provide for the emotional needs of the children.
32. It has been said in the reports that the grandmother lacks insight and understanding of the emotional needs and that this is borne off what has being called "Dysfunctional emotional parenting" throughout two or three generations in her family.
33. The grandmother addressed me today. She said she could not understand what it was that was the problem because she would do anything, be compliant – anything – in order to achieve the return of the children. I do not doubt that she would be compliant. It is a question of understanding and having the insight and the deep understanding of what the concerns were.
34. I know the grandmother loves her grandchildren. The Magistrates knew that. The described her as a "Committed grandmother". No one wants to take that away from her. She has done her best. But the issue really facing the Magistrates' Court was: did the grandmother have sufficient emotional abilities and understanding to provide the emotional needs of the three grandchildren? The evidence before the Magistrates' Court, particularly Dr Winter and the guardian, was that simply she did not.
35. You can love a child, but that is not everything. The guardian described it as the children needed an overpouring of warmth and love which was there rather than a functional caring of "It is teatime now", "Here is tea", "Now it is bedtime".
36. When the children were collected by the local authority on 19 December I can understand it was a fraught difficult occasion for the adults. Social services arrived with police officers. The grandmother said she was shocked. She thought that, from what a social worker had said to her, the collection would be on the 20^th and not the 19^th in the afternoon. She was not prepared and had not prepared the children. There was an unseemly incident. The grandmother being distressed, not being able to control her distress, there were loud voices. She herself said to me she recognises she was wrong then, but she herself said to the Magistrates, and indeed to me, that she told the children she did not want them to go, did not know why they were going, and that the local authority were evil. That is perhaps an example of a lack of insight to their emotional needs. To call the people who are going to look after children "evil" to the children's faces is not helpful and is in itself damaging. It may be how she felt. Holding back sometimes is important. That is perhaps an example, and only one example, of where she allowed her own needs to come forward.
37. The psychologist said psychotherapy might assist the grandmother to provide for the children. She said it would take time and probably beyond the timescales of the children. Children need to be placed quickly, particularly at this age. They need to have a final decision and not one that can go on and on and on which creates insecurity and confusion.
38. While useful to help grandmother exhibit her warmth, to exhibit her love and to understand what a child needs emotionally, psychotherapy would have taken time. The evidence was there that it probably not be within the timescale of these children.
39. The grandmother has had two sessions of psychotherapy and she is going for a third one. She tells me that her psychotherapist said that she does not really need psychotherapy because she is not depressed, members of her family have not been depressed. Yes, there is sadness of things that have happened. I have only received that information from the grandmother. I am not going to hold it against her because it has been said after the event in February. It may be that grandmother has not understood what was said. It may be the psychotherapist does not understand what is required of her. I know now. The evidence before the court in February was that psychotherapy was needs, probably beyond the timescales of the children, in order to achieve what was required.
40. The guardian and the social worker said that over the years the grandmother had changed in her approach to some of the parenting but had not changed enough. The final hearing was due in August 2006 but it was deferred to see if the grandmother could change more. She did not show that she was able to change further. That is why in December there was an application, supported heavily by the guardian, for the children to be removed.
41. This is a very sad case because the grandmother stepped in to help care for these three children and in that sense she is a very committed grandmother. She did her best in a difficulty situation. In December 2005 the local authority's social worker made an assessment of the grandmother and said to the effect that there were concerns that she rather favoured the children staying with the grandmother. I am told the following month the children were removed from the At Risk register where they had been registered for emotional and physical neglect when they were with their parents and that the social worker was supportive of the grandmother looking after these children until October when she says she saw the children in the car with the mother and grandmother – I know that is in dispute.
42. As the local authority's counsel has said, that is when she had to confront what the guardian and the psychologist was saying to her: the grandmother is not able to meet the emotional needs. If the sighting is a true sighting she cannot be trusted.
43. The social worker had always had concerns about the grandmother's ability. In October she changed her mind. That brought on the December hearing. The grandmother had the care of the children for 21 months. She had assumed the children would be remaining with her so it is doubly hard for her.
44. I know the guardian has criticised the local authority for hanging on in there. They were doing their best to keep the children within the family. That is what local authorities, social workers, guardians and indeed judges try and achieve. We only remove children from a natural family when it is necessary. It has to be done on evidence.
45. The Magistrates heard that evidence. There is ample evidence before them to justify the decision they reached.
46. As I have sought to explain, the main issue was the grandmother's ability to provide for the emotional needs of the children. Even if the finding relating to 26 October is a wrong finding it still does not drive away the principal concern of the grandmother's lack of insight, lack of understanding and consequential inability to provide for the emotional needs. That is the key to this case. There is ample evidence to say that the Magistrates were very justified in reaching the conclusion that they did.
47. I have to ask myself: were they plainly wrong? It is just: were they wrong? or, would I do something else in the circumstances? The question is: were they plainly, obviously wrong? Having read the papers and listened very carefully particularly to the grandmother I have to say that I cannot say they were plainly wrong. I have sympathy for the grandmother, but sympathy is not what I am asked to do. I am asked to consider whether the Magistrates were wrong and I cannot say they did.
48. For that reason I must dismiss the appeal and express my sympathy, as I do, to the grandmother and indeed to the mother.