Last Updated on December 8, 2020 by LawEuro
Case No: B4/2017/2948 + 2523/PTA+A
Neutral Citation Number: [2018] EWCA Civ 238
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
MRS JUSTICE PARKER
[2017] EWHC 3171 (Fam)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 21/02/2018
Before:
LORD JUSTICE MCFARLANE
LORD JUSTICE KITCHIN
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Between:
L (A Child)
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The Parent (in person) for the 1st Appellants
The Grandparents (in person) for the 2nd Appellants
Anna McKenna QC (London Borough of Wandsworth) for 1st Respondent
The Parent (in person) for 2nd Respondent
Miss Markanza Cudby (Children’s Guardian) for 3rd and 4th Respondent
Hearing dates: 6 February 2018
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Judgment
Lord Justice McFarlane :
1. On 9 October 2017 Mrs Justice Parker made care orders with respect to two children, a girl, “A”, now aged 14 years, and a boy, “B”, now aged nearly 9 years. The children’s mother and, separately, the children’s maternal grandparents have issued notices of appeal seeking to overturn the judge’s orders with respect to one or both of the children. As the notices of appeal each raised a range of different issues and each of the proposed appellants was now acting as a Litigant in Person, having considered the case on paper, I set the matter down for an oral permission hearing on notice to the other parties with the Appeal to follow if permission were granted.
2. On 6 February 2018 the court heard the two separate applications for permission to appeal advanced at an oral hearing attended by all parties. Having heard the submissions made by each of the applicants, we announced our decision which was to refuse permission to appeal in respect of both applications. This judgment now sets out the reasons supporting that decision.
Background
3. The background to these applications arises from the long-term and heavily conflicted relationship between the children’s mother and maternal grandmother. At the time of A’s birth her parents’ ability to care for her was overborne by serious drug problems and their chaotic lifestyle. A was placed in the care of the grandparents when she was aged 3 months with that placement, eventually, being consolidated though a special guardianship order made in their favour by Black J, as she then was, in 2006. Since then there have been periodic, but on each occasion extensive, court proceedings in relation to the children. A bundle of relevant previous judgments has been supplied to this court; it runs to over 400 pages and by no means includes every judgment that has been given over the past dozen years.
4. It is neither possible nor necessary to describe the background in any detail. The following key events are, however, of note.
5. In 2010, following an extensive series of hearings to review the arrangements, Parker J, who had by then taken over the conduct of the proceedings following Black J’s elevation to the Court of Appeal, gave a comprehensive judgment effectively consolidating the then current arrangement. There were, however, outstanding issues relating to schooling and contact which required the case to come back on many occasions before the judge, in the ensuing two year period.
6. By December 2012 the situation had deteriorated to the extent that the judge held that A had suffered significant emotional harm through exposure to the conflict between the adults in her life and from attempts to suborn and influence her (to use the judge’s words) made by the grandmother. Parker J therefore made an interim care order permitting A’s removal from the grandparental home.
7. Following a period of assessment and reflection, and following further extensive court hearings, a consent order was made in November 2013 by which a residence order was made for A to live with her mother. As Parker J noted in the judgment of August 2017, which is the target of the present applications, on that occasion she “ruled that whatever happened in the future that A could never return to [the grandparents] care because of the emotional harm that she had suffered”. The special guardianship order was discharged and the court made a supervision order supporting the mother’s care of A for the period of one year. In the August 2017 judgment, the judge recorded the basis of her decision to endorse placement with the mother (at paragraph 102):
“The mother assured me that she wanted to care for both children, and that she now understood how corrosive her relationship with her mother was, and that she accepted that there should be a “firm barrier” between them with no confusion as to who was parenting A. I found that the mother had changed, had matured, was free of drugs, that her relationship with the father was at an end save for the fact that he visited B, and that she could manage and supervise contact.
…
No person reading my judgments of 2013 and the Order could have been in any doubt that I intended the grandparents/grandmother to play a limited and monitored part in A’s life.”
8. As the judge was to find in her August 2017 judgment, the status quo established by the court’s 2013 orders was gradually eroded so that the grandparents progressively had more and more contact with A with the result that, by the Summer of 2015, the mother and the two children were back living in the maternal grandparents’ home.
9. The next significant event, and the trigger which restarted the court process, occurred on 20 June 2016 when both children were removed from the grandparents’ home by Police officers using powers under the Children Act 1989, s.46.
10. The Police intervention occurred after a series of reported incidents spanning the previous 6 months in which there was evidence of repeated and regular outbursts of the conflict between the mother and the grandparents (including, on occasions, the father). All parties accepted that there had been physical struggles but each gave a wholly conflicting account of what had occurred.
11. In the 48 hours including the 20 June, the local authority became aware of a further highly emotive dispute between the mother and the grandmother directly relating to A, and, having considered the judge’s November 2013 order, they concluded that the children should not remain in the grandmothers care in the short term. Following the Police action the children were retained in foster care, initially under CA 1989, s.20 with the agreement of the mother.
12. Care proceedings with respect to both children were commenced on 15 July 2016 and, since that time, the children’s placement in foster care has been maintained under interim care orders and, the final care orders made by Parker J in October 2017.
The Proceedings
13. The final hearing of the care proceedings occupied some 9 days before Parker J in December 2016. Each of the parties was represented by experienced solicitors and counsel, with the exception of the maternal grandparents who acted in person.
14. The court had expert professional input from a clinical psychologist, Dr H, a psychiatrist, Dr S, an independent social worker, Miss C, the local authority social worker and the children’s guardian. Each of the professionals concluded that neither of the children could be cared for by either parent and that the youngest child, B, should not be placed with the grandparents. There was, however, professional disagreement as to whether or not it was in A’s best interest for her to be returned to the maternal grandparents’ care.
15. In particular, it was the recommendation of the children’s guardian (as appointed by NYAS) that A should live with the grandparents, although as the judge records, the guardian regarded the issue as being finely balanced with the prospects only “51/49” in favour of grandparental care. The judge records that the guardian “made it very clear that she would depart from that recommendation if contact did not take place, or if it was unsuccessful, in which she included it being erratic, or being made unhappy or accompanied by stress, tension, or dispute.”
16. At the conclusion of the oral hearing in December 2016 the judge reserved her judgment. In January 2017 she announced her decision which was to make full care orders with respect to both children. She produced a short account of her decision so that it might be communicated to the children. Unfortunately the full version of the judge’s final judgment was not made available until 2 August 2017 and the formal orders were only made on 9 October 2017 following a further short oral hearing.
17. The full judgment, which runs to over 60 pages with 434 paragraphs, provides a comprehensive account of the background, the evidence considered by the court and the judge’s findings.
18. The issue of whether the statutory threshold criteria in CA 1989, s.31 were satisfied was contested. The judge concluded that the threshold was met on the basis, firstly, that the father continued to use drugs and was of no fixed abode. Secondly, that the mother had left the children in the care of the grandparents on many occasions and for long periods from January 2015 onwards. Thirdly, the judge concluded that the mother was “unable to meet the physical, educational and emotional care needs of the children whilst living independently and has relied on others, namely the father and maternal grandmother, whom she knew to present the children with serious risks to their emotional and physical well being.”
19. Fourthly, so far as the mother is concerned, the judge found as follows paragraphs 369 and 371:
“The mother accepts that she brought the children into an environment with her mother which exposed them to high likelihood of emotional harm as a result of the relationship between her and the maternal grandmother. She does not accept that she “knowingly did so”. I reject her case. She knew very well what could happen. All my findings and those of Black J made the risks clear and her own evidence was that conflicts were present and pervasive. She took the risk because she wanted to, and it suited her, namely to seek support, and to continue the relationship, despite all. The same is true of the grandmother and grandfather.
“The mother concedes that the acrimonious and abusive relationship between her and the grandmother caused their physical and emotional care needs to be used as an object of dispute as a result of which they suffered harm. The grandmother was also responsible for this. I remind myself of my 2010 judgment when I found that A was treated as a prize and a weapon”.”
20. Fifthly, the judge, having undertaken a review of her previous findings at the request of the grandmother, held (paragraph 374) :
“The fact that 3 years have passed since the 2012/2014 proceedings does not render my conclusions on those, and indeed previous hearings, “meaningless and redundant” as the grandmother asserts.”
21. Finally, in terms of threshold, the judge found that the relationship between the grandmother and the mother remained the primary focus of concern and cause for harm (at paragraph 378) :
“The grandmother and mother are preoccupied with one another and in assessments the other was the main topic of conversation. Their respective faults and behaviours took up the major part of the evidence and submissions in the hearing and were so much the focus that it ran the risk of eclipsing the interests of the children and for much of the time it excluded any reference to B who was not mentioned for long stretches. They remain linked together by disputes about possessions, responsibility for alleged damage to the family home, and each has threatened litigation. So far as each is concerned the other bears the sole responsibility for the children’s present predicament. The grandfather allies himself with the grandmother in a way which makes his part in the conflict active rather than passive, and the father is vocally and unabashedly critical of the grandmother whom he describes as “crazy”. For her part the grandmother views the mother as suffering from major psychiatric disorder, as did the mother’s father, and that this genetic contribution and the mothers own personality have led her to be an impossible person. In spite of the grandmothers stated position that this is a new insight this is exactly the way she has presented her perspective during the “low” phases of their relationship over the years.”
22. Having found the threshold criteria established, the judge moved on to consider the welfare of the children and, rightly, gave prominence to the stated wishes and feelings of A who, the judge recorded, had firmly and clearly stated that she did not wish to live in foster care. At an earlier stage she had expressed an interest in living with her mother, but her final choice was to live with her grandparents and for B to live with her mother. The judge was, however, “quite satisfied that A has been subject to a high degree of influence from her grandmother, subtle, persistent and highly persuasive, for many years”. The judge analysed A’s wishes and feelings over the course of 12 substantial paragraphs which included recognition that the grandparents’ home had been the most enduring home that A had experienced and that there were a number of positive aspects to it.
23. B’s wishes were more shortly stated, he was content to continue in foster care, but did not want A to be treated differently from him. A, on the other hand, had stated that she did not think that she could successfully live with her brother.
24. Using the headings in the welfare checklist in CA 1989, s.1(3) as a template, the judge then reviewed other aspects of the children’s welfare. In terms of potential harm, the judge acknowledged that there was a risk to A’s emotional stability and wellbeing were she to remain in foster care against her stated wishes. However, the judge plainly regarded the certainty of emotional harm were she to return to the grandparents’ home as outweighing that which might be experienced in foster care. At paragraphs 413 and 414 the judge says this:
“A says that she longs to leave foster care, but the reality, particularly if she returns to the midst of the fray, could be different. There would be a honeymoon period but my prediction is that problems would start to arise with social services and particularly in respect of contact within a short period of time and that A would be drawn into this, probably as main protagonist. Exposure to conflicts would cause her harm, and possibly cause the problems which the guardian and Dr S foresee as possible in foster care: depression, school failure, absenteeism, inability to have trust in those who are trying to help such as social workers and counsellors, and possibly even self harm and absconsion. Contact is simply not going to happen in any happy or beneficial way if at all.
The best chance for a stable future, shielded as much as possible from conflict, is for both children to remain in care. For that to be a long term basis will also be a change. It is the most beneficial change foreseeable.”
25. Overall the judge’s primary conclusion was that, whilst the grandparents plainly have capacity to provide good practical care, they cannot meet the emotional needs of either of these 2 children. She stated her conclusion in these terms (at paragraphs 417 and 418) :
“The chance of the relationship between the mother and the grandparents being maintained is high. It is highly unlikely that they will be able to refrain from contact with one another of some description, and that even if they do not, the children will be exposed to hostile feelings between and about the adults – such as the other adult is “dead” to them. The most likely pattern is the cycle of reconciliations and separations.
The grandmother is incapable of meeting either of the children’s needs because of her poor relationship with their parents and likelihood that she will undermine contact and recruit the children in so doing, that she will place pressure on the children in various ways not least because of her distorted views, and she will expose them to friction with others.”
26. On that basis, the judge justified the making of full care orders.
9 October 2017 hearing
27. On 9 October the judge held a short hearing to deal with any outstanding matters. On that occasion the grandparents were represented by leading counsel who applied for the court to re-open the welfare determination with respect to A and review the decision for her to remain in foster care. The basis of the application was that, on the grandparents’ case, A had continued to be unsettled and unhappy in foster care. This application is of note as it forms the basis of one of the grandparents’ two pleaded grounds of appeal. Although the order made that day records that the judge dismissed the application, the transcript of her judgment, which deals with a range of other issues, does not expressly deal with the point.
The present circumstances.
Before turning to the issues raised in support of each of these two applications, it is right to record that this court was told by Miss Markanza Cudby , counsel instructed on behalf of the children’s guardian, that, unfortunately, A’s third set of foster carers have indicated that they can no longer offer her a home. Having reviewed the situation, the guardian now intends to issue an application under CA 1989, s.39 to discharge the care order.
The mother’s proposed appeal
28. The mother’s notice of appeal is supported by no fewer than 31 specific grounds of appeal. Miss Anna McKenna QC on behalf of the local authority has helpfully identified four categories within which most, if not all, of the proposed grounds can be placed:
i) Procedural errors.
ii) Inapt reliance on inapt experts.
iii) Factual errors.
iv) Failure to treat the 2 children separately.
29. In presenting her oral submissions the mother accepted the court’s invitation to prioritise the most important points, the first of which related to expert evidence.
30. In relation to experts, the mother’s submissions can, I hope, fairly be summarised as follows. This was, she submits, a case of “parental alienation” as a result of the grandmother’s manipulation of A to the consequent detriment of A’s relationship with her mother. The mother submits that none of the instructed experts in the care proceedings was sufficiently skilled or experienced in cases of parental alienation. The experts were chosen by a hurried process, in order to meet the statutory 26 week window applicable to care proceedings, and directions were given at a hearing before a judge other than Parker J who was wholly unfamiliar with the case. As a result Parker J did not have control over the choice of experts as, it is submitted, she should have done.
31. The mother wished to instruct an additional expert in order specifically to address the issue of parental alienation. To this end she claims to have made two such applications under Family Procedural Rules 2010, Part 25. The first, to instruct a Dr D and the second to instruct a Dr C.
32. So far as Dr D is concerned, this court has seen a short note of a ruling, apparently made without a hearing on an unspecified date prior to the start of the final hearing, in which the judge refused leave for the instruction of Dr D. In it the judge records that in August 2016 she had directed that all four adults should be assessed by Dr H who, the note records, “was not my choice but that of the parties – I do not know her”. The judge’s note goes on to record that the reason put forward by the mother for now wishing to instruct a further expert was that she claimed Dr H’s opinion had been manipulated and influenced by the dispatch to her of a very large body of material by the grandmother. The judge concluded that that issue could be dealt with by cross-examination, rather than the instruction of a fresh expert. The application was therefore refused.
33. So far as Dr C is concerned the appeal bundle includes an application made by the mother’s solicitors and dated 20 December 2016 (the penultimate day of the oral hearing) for leave to instruct Dr C who is described as the “founder member of Family Attachment Consortium, a group of professionals who work with birth and adoptive families to enhance family relationships following trauma and abuse”. Dr C’s CV is attached to the application and, apart from noting her membership of the “group for the systemic study of parental alienation,” the description of the work that Dr C has undertaken does not make any express reference to “parental alienation”. During the appeal hearing the mother made reference to a flyer advertising the work of the Family Attachment Consortium and, again, whilst there is plainly a focus on work with dysfunctional families, there is no express reference to “parental alienation”.
34. The judge made reference to the application to instruct Dr C at paragraph 192 of her judgment:
“At the conclusion of the hearing before me [the mother] put in a Part 25 application for permission to instruct a Psychotherapist with a view to embarking on therapy before being able to reclaim her children.”
Later, during the description of her conclusions at paragraph 426 the judge says this:
“I find that an adjournment for the mother to have an assessment with a view to therapy is not in either of the children’s interest. Miss Bazley QC, (on behalf of the mother) submits that the deficiencies of Dr H’s assessment justify a second opinion now. I do not agree. The mother has no real understanding of what needs to change and I accept Dr H’s view that intervention does not have a significant chance of success. If the mother undertakes therapy that is a matter for her and if she is successful that maybe very material in any discharge application. But the children cannot be kept in limbo.”
35. The mother’s case about experts forms part of a bigger point which is that, in her view, the proceedings were unfairly and unjustifiably compressed by the court affording priority to the “26 week rule” with the result that the judge proceded on inadequate evidence.
36. Having reviewed the relevant material relating to the instruction of experts both on paper and, now, having heard the mother’s oral submissions, I am satisfied that there is no reasonable prospect of success on appeal. There is no indication that the application to instruct Dr D was made on the basis that he had additional or different expertise from that of Dr H. The mother’s case at the time seems to have been that Dr H had been significantly compromised as a result of exposure to material submitted by the grandmother. The decision whether or not to instruct Dr D was a case management decision made by the trial judge and therefore one over which there was a wide margin of discretion into which an Appellate Court should not trespass without clear evidence of an error in principle or grounds for holding that the judge was plainly wrong in refusing the application. The mother was represented at the time by a leading Family QC and a highly experienced legal team. No application was made at the time to appeal the judge’s case management decision.
37. Although the judgment indicates that Miss Bazley relied upon criticism of Dr H in support of the application with respect to Dr C, the judgment makes clear that the application was not made to bring in, at the eleventh hour, new expertise specifically targeted on “parental alienation” but, rather, to provide a potential source for therapy with a view to repairing the mother’s relationship with her children. Again, the decision whether or not to adjourn to enable this instruction to be made was a case management decision by the judge. Having considered the available material there is no prospect of a successful appeal against the judge’s refusal of that very late application on the basis it was simply too late and the plan for the children’s future needed to be settled without delay.
38. It follows that in this regard, and indeed, in all others, there is no indication that the effectiveness of the 9 day hearing or the fairness of the process was in any manner compromised by the requirement for the court to conclude the proceedings within 26 weeks.
39. The second principal point raised by the mother relates to the fact that the grandparents were joined as parties to the proceedings with the result, she submits, that the grandparents were thereby given a platform from which to deluge the other parties, the experts and the judge with a barrage of material all designed to denigrate the mother. As a vulnerable individual, she considered that the court should be protecting her rather then allowing her to be attacked to the extent that she described being “completely ripped to shreds in the court process”.
40. Although the mother accepts that she had the benefit of a full legal team, she had followed their tactical advice which was to avoid engaging with, or otherwise seeking to control, the material being submitted by the grandparents. The mother is now highly critical of that advice and of the tactical stance that was taken on her behalf.
41. In terms of any potential appeal, it is not possible to contemplate how the points now raised about the grandparents’ role in the proceedings could result in success for the mother. Despite the judge’s early findings, the grandparents were entitled to put themselves forward as potential carers for one or both of these children. Indeed, there candidacy to be the carer of A was supported by the children’s guardian and some of the expert evidence. In reality, the court would have had no option but to make them parties to the proceedings. Thereafter, if, as is submitted, the grandparents’ litigation behaviour was unreasonable, oppressive or otherwise seemed to be abusive of the mother then it was entirely open to her and those acting on her behalf to make complaint to the judge. Apparently no complaint was made. In the circumstances, it is not possible to criticise the judge for the conduct of the hearing or otherwise hold that the process was unfair.
42. The third matter expressly raised at the oral permission hearing related to B. At the time of the hearing before the judge there had been no definitive conclusion as to whether B’s behaviour sufficiently established a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD). This court was, however, shown a letter dated 23 June 2017 from the developmental paediatric unit of a major London hospital in which it is said that, having considered B’s history, background and ADHD assessment, “overall it was felt he meets the criteria for a diagnosis of ADHD”. Although this letter was available prior to the finalisation of the judge’s judgment and prior to the hearing on the 9 October, it is not apparent that it was ever placed before Parker J or that she was invited to reconsider her decision in the light of it. Be that as it may, it is plain that the judge founded her decision with respect to B upon the mother’s inadequacy as a safe and consistent parent. The decision did not turn upon whether or not she could cope with B’s specific behaviour and specific parenting needs. The judge was well aware that B’s behaviour might potentially qualify for a diagnosis of ADHD and, in the circumstances, it is not possible to contemplate that the judge would have reached a different conclusion as to the welfare outcome for this child had she known the paediatricians had formerly made an ADHD diagnosis.
43. Finally, in terms of oral submissions, the mother gave prominence to her complaint that the judge failed to treat the two children separately. She submitted that there was so much focus on A and the various allegations and counter allegations as to the impact on her of the adult relationships, that B’s circumstances were completely overlooked by the court process. In particular she complains that the judge failed specifically to consider the prospect of B coming to live with his mother without A. In this regard the mother challenges the judge’s findings in relation to threshold. To which I have already made reference.
44. Again, I do not consider that this potential avenue of challenge has any prospect of success on appeal. Prior to making her oral submission, the mother had not previously indicated a challenge to the threshold findings. In any event, those findings were based upon a substantial body of evidence and, in terms of the mother’s growing need to rely upon the grandmother to care for the children, they were established on the mother’s own case and by her own admission. Further, in terms of the option for the mother to care for B, this was expressly considered by the experts and by the judge who, sadly for her, unanimously ruled it out because of the deficits in the mother’s parenting ability.
45. More generally the mother raises a substantial number of individual criticisms of a procedural or factual nature. None of the individual points could possibly support an appeal on its own, and even when taken together they fail to achieve any traction against the judge’s detailed and well supported analysis.
46. The mother’s case before this court was supported by the father who attended and made brief oral submissions to that effect.
47. Drawing matters together, despite having a good deal of sympathy for this mother and despite accepting, as I do, she has avoided any drug use for many years, for the reasons I have given it is not possible to identify grounds of appeal, either taken individually or together, which would establish any reasonable prospect of success. As a result, her application for permission to appeal must be refused.
Grandparent’s appeal
48. The grandparents’ notice of appeal is based upon formally pleaded grounds of appeal prepared by leading counsel. The grandparents only seek to challenge the decision with respect to A. The proposed appeal is firmly focused on two specific bases. Firstly that, in making the “finely balanced” determination as to A’s welfare, the judge overrode the strongly held view of this 12 year old young person and, in particular, failed to have regard to the consequences for A of having had her wishes and feelings overridden by the court. Further in this regard, it is asserted that the judge was in error in assuming that the toxic relationship between the grandparents and the mother would endure whereas, on the contrary, it is stated that the evidence established they were to have no further contact with each other in the future.
49. The second basis of the proposed appeal is that by the hearing on the 9 October 2017, some 10 months having passed since the end of the oral hearing, the judge should have taken regard to the fact that, firstly, the mother and grandparents had maintained a strict separation between each other during that period, and, secondly, A had continued to show signs of being wholly unsettled in foster care and wanting to return to the home of her grandparents. It is therefore submitted that the judge was wrong not to undertake a review of her welfare decision with respect to A in October 2107.
50. Subsequently, on 25 January 2018, the grandparents have filed a “supplementary skeleton argument update” which runs to over 20 pages and, in contrast to the tightly pleaded grounds of appeal and skeleton argument prepared by counsel, is in rambling narrative form including within it a wide range of criticisms of the court process and the judge’s judgment.
51. Further, on 1 February 2018 the grandparents submitted an additional document entitled “Authorities”, which runs to 7 pages, does not in fact include any legal authority, and is a further narrative statement of the wide ranging points upon which the grandparents now seek to argue their case.
52. The grandparents have neither applied for nor been granted leave to amend their notice of appeal to plead any additional grounds of appeal. I will therefore, initially, consider the case pleaded on their behalf by leading counsel which is summarised at paragraph 48 and 49, together with those points about A’s wishes and feelings which are now very firmly and clearly made in the additional documents filed by the grandparents and in the oral submissions made to this court.
53. For the avoidance of doubt, prior to the oral hearing of these applications, I had read the two bundles of documents submitted by the grandparents including letters from A addressed to the President of the Family Division dated 25 October, 20 November and 8 January together with the grid that she had complied entitled “why I should go back to my grandparents”. This material, together with other documents in the grandparents’ bundle had, quite properly, been the subject of a formal notice to adduce “fresh evidence”. Without determining that application, I had read all the material that had been submitted.
54. In a case, such as this, based upon dysfunctional relationships, the wishes and feelings of a young person at the epicentre of the family conflict who is about to become a teenager must be given a high order of consideration by the court. For my part, Parker J’s judgment demonstrates that A’s wishes and feelings were indeed afforded appropriate weight and priority in this case.
55. The judge met A for some 20 minutes during which A repeated her clear wish not to remain in foster care and to return to the home of her grandparents. The judge had a similar account of A’s wishes and feelings from other sources and she accepted that evidence. She was, however, quite satisfied that A had been the subject of a high degree of influence from her grandmother over many years. In some respects, that was what the whole case had been about both in 2016 and at earlier times. The judge had made strong adverse findings in that regard. Thus, as well as taking account of A’s stated wishes and feelings, the judge was bound to set what A was saying into the overall context of the family dynamics as the judge had found them to be.
56. The judge expressly states that she does not dismiss the genuineness of A’s wish to live with her grandparents or the fact that they were her primary carers for the first 9 years of her life and that there were many positive features of that time. Nevertheless, in the light of her wider findings, the judge held that this emotionally immature child would suffer further significant emotional harm if she were returned to her grandparents’ home, notwithstanding that that was her firmly held wish.
57. In my view the judge’s subtle and balanced evaluation of A’s wishes and feelings cannot be faulted. It is in contrast to the grandparents’ case before this court, which is simply to repeat in various formats the fact that A states and continues to state that she wants to live with her grandparents.
58. A specific point taken in the grounds for appeal is that the judge failed to have regard to the consequences for A in understanding that the court had overridden her views. However, as paragraph 361 of the judgment shows, the judge expressly took into account the evidence of Dr S and the guardian who had stressed that “the risk to A arising from the strength of her feelings” may result in a catalogue of unsettled, disturbed and potentially harmful behaviour were she to remain in foster care. This was, sadly, a case where none of the options before the court were wholly positive or risk free. The judge was required to assess the risks and the potential for harm and then make a balanced judgment affording A’s welfare paramount consideration. The judge concluded that it would be more harmful for her to return to the grandparents’ home than to risk the possibility of harm in foster care. The judgment demonstrates that the judicial eyes were wide open to the risks on both sides. An appeal could only, therefore, succeed on the basis that the outcome chosen by the judge was simply “wrong”, in the sense that the evidence could not support that choice. All parties in the present case seem to accept that it was “finely balanced”. Seasoned family lawyers well understand that the more finely balanced a welfare decision may be, the less appealable it is. Where the evidence would support the judge choosing either of two options, it will be almost impossible to say she was wrong in opting for one as opposed to the other.
59. The second basis of the grandparents’ pleaded case is that the court should have undertaken a review of the welfare decision in October 2017. When reading these permission to appeal applications on paper it was this point, in particular, that caused me to set up an oral hearing before a two judge court. On any view the delay between the judge announcing her decision in January and making the resulting order in October was unacceptable. During the intervening period the parties did not have, until August, any account of the judge’s reasoning and, until October, the potential for any appeal process was effectively stalled. More importantly, in cases considering children, life moves on and, almost inevitably, changes in the family circumstances will have occurred.
60. In the present case, although the court order records that the application for a review was made and refused, the short judgment given on 9 October 2017 does not directly refer to it. However, the judgment does indicate that the judge was well aware that at least 2 of the parties were intending to appeal to this court and she gave a number of directions designed to ensure a swift process in that regard. With that context in mind, it may well be that the final paragraph of the judgment does indeed indicate the judge’s approach to the review application. It reads:
“I refuse permission [to appeal] on the basis I have made a factual decision. I have had a lot of evidence and given a long judgment and it must be for the Court of Appeal to decide whether or not this is an appropriate case for my discretion to be revisited by a higher court.”
61. It is unusual for judges to re-open substantive issues after they have been fully determined, although, it is accepted, that the court, in exceptional cases, has the power to do so before final orders are made. The delay of 10 months between the close of the hearing and the making of the order opened up an opportunity for the application for review properly to be made. I cannot, however, contemplate that this court would hold that the judge was wrong, in her discretion, not to re-open the entire welfare evaluation in November 2017. I come to that conclusion firstly because the evidence of A’s instability and distress at remaining in foster care was very much of the type and level contemplated by the judge in her judgement. What was reported was a playing out of predicted behaviour. Secondly, to re-open the welfare determination would have inevitably involved yet further litigation running on through the Autumn of 2017 thereby further postponing the making of final orders for A’s future. Thirdly, the judge was entitled to handover consideration of whether or not the welfare decision required revisiting to the Appeal Court given that the mother and the grandparents had already determined to issue appeal proceedings.
62. Finally, in this regard, this court now knows that A’s guardian is to issue an application in the Family Court to discharge the care order because of continuing concerns as to A’s welfare. If, contrary to my view, the grandparents were to succeed on appeal on this “review” ground, the most they could hope for is that this court would direct a re-hearing of the welfare determination on the same basis that will now, in fact, take place within the discharge application that is to be made.
63. In all the circumstances, the proposed appeal of the grandparents, as pleaded in their original grounds of appeal but taking into consideration the wider points that they now make about A’s wishes and feelings, has no reasonable prospect of success.
64. I turn, finally, to the more widely based points made by the grandparents in their supplemental skeleton argument, their “Authorities” document and orally to this court.
65. When asked to state the principal basis of their proposed appeal at the oral hearing, the grandmother stated, having clarified that they were concentrating on the order with respect to A, as opposed to B, that primarily “we would like our grandparental names to be cleared”. She clarified that this would involve a re-opening of Parker J’s factual determinations in 2013 and, on the grandparents’ case, the judge’s failure to revisit those findings in the light of subsequent hearings during the 2016/7 court process. The grandmother told this court that the judge’s approach at every turn was that she had made her findings in 2013 and that all parties and experts were required to stick to those findings. The grandparents’ supplementary skeleton draws attention to some 20 or more evidential points arising since 2013 which, it is argued, were ignored by the judge. Reliance is placed upon an observation that I had made when refusing an earlier application for permission to appeal to the effect that the judge had indicated that she was prepared to re-evaluate her earlier findings if necessary.
66. It is right to record that the wholesale root and branch, re-opening of the 2013 findings was presented to this court as part of the present application for the first time during oral submissions. The grandparents’ supplementary skeleton and “Authorities” document had more modestly argued that the judge should have re-evaluated her welfare determination in the light of the post 2013 evidence.
67. There is no basis upon which this court could now entertain a fundamental challenge to the factual determinations made by Parker J in 2013. There was no appeal against those findings at the time. Other than their plain disagreement with the outcome, no basis for an appeal against those factual determinations has been put before this court and the supplementary skeleton and “Authorities” document do not set out a case for appeal against the 2013 findings.
68. Further and looking now at the 2016 process, rather then being in error, the judge was entirely justified in requiring the parties and the professional witnesses to base their opinion and advice upon the 2013 findings. As a matter of law those findings stand unless they are set aside by the judge in the light of fresh evidence or overturned on appeal.
69. As is plain from the words I used, the observations made on refusing the earlier application for permission to appeal did not require the judge to undertake a re-evaluation of her findings; they merely noted that the judge was willing to do so in the light of any evidence submitted. The judgment shows that in a number of respects the judge did indeed look again at elements of the case in the light of fresh material.
70. In relation to the 20 or more “points of new evidence” relied upon by the grandparents, this court is not in a position to evaluate the strength or otherwise of the individual points. None of the background documentation upon which they may be based has been produced. Be that as it may, each of the points seems to relate to the behaviour, lifestyle and/or mental health of the mother and/or the father. Whilst such points might be of importance in the overall picture, reliance upon them in the context of the appeal against a judge’s welfare determination ignores two points. Firstly, that the judge, whether or not she referred to these 20 individual points, decided against placing either of the children with either the mother or the father. Secondly, the points completely ignore the court’s overarching findings as to the highly abusive and manipulative behaviour of the grandmother, it being that finding which primarily led the judge to rule out placement of A in the grandparents’ care.
71. Even if I were persuaded that it was a proper course for this court now to entertain the more widely based appeal proposed by the grandparents (as opposed to the narrowly pleaded case upon which the notice of appeal is based), for the reasons I have given I do not consider that the wider care is of any merit or that it could possibly support a successful appeal against the judge’s welfare determination.
72. For the reasons that I have now given, I concluded that the grandparents’ application for permission to appeal should be refused.
Lord Justice Kitchin
73. I agree
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