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Cite as: [2002] EWCA Civ 1385

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Neutral Citation Number: [2002] EWCA Civ 1385

(Mr Recorder Tedd QC)

The Royal Courts of Justice
London WC2
Wednesday 21st August, 2002

B e f o r e :





(Computer-aided transcript of the Palantype Notes
of Smith Bernal Reporting Limited
190 Fleet Street London EC4A 2AG
Tel: 020 7404 1400
Official Shorthand Writers to the Court)


MISS R CARTER (instructed by Messrs John Polychronakis, Dudley DY1 1HL) appeared on behalf of the Applicant/Local Authority
MISS S MORGAN (instructed by Messrs Blount McNamara, Brierley Hall DY5 3EH)
appeared on behalf of the First and Second Respondent/Mother and Father
MISS E PLATT QC and MR S BAILEY (instructed by Messrs Sanders & Co, Stourbridge DY8 1LT)
appeared on behalf of the Third Respondent/Grandmother



Crown Copyright ©

  1. LORD JUSTICE ALDOUS: I invite Lady Justice Hale to give the first judgment.
  2. LADY JUSTICE HALE: This is the local authority's appeal against an order made by Mr Recorder Rex Tedd QC in the Wolverhampton County Court on 2nd August 2002 in care proceedings relating to two little boys, C M, who was born on 10th March 1988 and is now aged four and a quarter, and E B, who was born on 12th September 1999 and is now nearly three. As this is a case relating to children nothing must be published which would lead to their identification. They are the youngest of four children born to their mother, D B. An older son died and an older daughter lives with her father, who is also C's father but he has not recently taken any part in these proceedings. E's father is the mother's present partner, M G. He has treated both children as his own. The effective respondent to this appeal, however, is Mr G's mother, C G, the paternal grandmother.
  3. The mother and father began living together in 1988 when C was a few weeks old. They both had long-standing histories of alcohol and drug misuse. In 1999 they both became addicted to heroin. They also turned to crime to fund their habit. Nevertheless, they were introduced to a rehabilitation programme early in 2001, which does not appear to have been successful. A crisis took place in late June 2001 when they went on the run leaving the children with the paternal grandmother, for what she thought would be a short time. Emergency protection orders were obtained on 28th June 2001, but the children stayed with grandmother until 4th July when they were placed in foster care where they have remained ever since. The parents were arrested respectively on 4th and 5th July 2001 and remanded in custody. In September the mother was sentenced to 2½ years' imprisonment for robbery. Her conditional release date is October 2002, although she may be released on a tag this month. The father was sentenced to 7 years' imprisonment and his earliest date of release would be in 2005.
  4. The paternal grandmother expressed her intention to apply for a residence order in September 2001. The plan then appears to have been twin tracking: in other words, to arrange a formal assessment of the grandmother's parenting capacities while pursuing arrangements for a permanent placement elsewhere should that assessment prove unfavourable. However, for what appear to be administrative reasons, an assessment of the grandmother did not take place. Meanwhile, a forensic psychologist, Ms Wenban-Smith, was jointly instructed to provide an assessment of the parents and the paternal grandmother. Her report is dated 22nd April 2002. As a result of that report twin tracking was abandoned and the care plan for both boys became a placement for adoption. According to the judge, the local authority would:
  5. "... not lend itself to further assessment, nor reconsider the essential route which it considers the boys should travel." (paragraph 75)
  6. The hearing before the judge lasted from the Monday afternoon until the Thursday. Before him there were, in effect, two realistic options for the children. The first was the local authority's care plan for adoption. The second was the grandmother's proposal that the children should live with her. A further possibility of adjournments to test whether the mother might resume care in the near future following her release from prison was not regarded as realistic.
  7. The judge considered that the mother had made good progress while in prison. She had taken serious steps to come off drugs and had remained free of hard drugs for a long time, subject to having taken cannabis on a couple of occasions. The judge's assessment was that although she would not find it easy after her release, she had a real worthwhile prospect of success in staying off drugs. Nevertheless, it would plainly be inappropriate for the boys to live with her immediately after her release. The additional stress which that would cause might well be too much. It would also be too great a risk for the boys, but:
  8. "... there is a real prospect that within one or two years of release she would have put her life in such order, and have built up sufficient strength, to be able to offer them a decent home and upbringing." (paragraph 34)
  9. For option one to happen at all -- that is the local authority's care plan for adoption -- the judge had to be satisfied that the threshold criteria in section 31(2) of the Children Act 1989 were met. If there were to be any criticism at all of the long, detailed, well structured and thoughtful judgment of the judge, it is that he did not address himself to that question at the outset and that when he did do so the statement of the basis upon which he found the threshold criteria proved might perhaps have been a little more precise. He listed certain incidents when the children had not been properly looked after (in paragraphs 16 and 17). He found that there had been no physical violence towards the children, that both parents loved the boys and believed that they were doing their best to look after them, although their perspective was distorted by drugs. He found that the boys had spent much time with the paternal grandmother who had provided perfectly adequate material care, which was confirmed by an initial assessment in March 2001. When they were taken into care there was little physically or mentally amiss with either boy that could sensibly be attributed to a lack of care, or worse, from the parents rather than from the upheaval which they had suffered in late June/early July, having been moved in quick succession from their parents to their grandmother and into foster care (see paragraph 39).
  10. So he concluded that they were not suffering any actual significant harm when the proceedings began. The parents, however, conceded that the boys were at risk of significant harm then and the judge accepted that concession (see paragraph 78). It is not entirely clear whether the basis was emotional harm from the parents' disordered lifestyle or the possibility of physical neglect in the future from the sorts of incidents that had taken place in the past, or a combination of all of those matters. Certainly it would have been open to the judge to make that conclusion. Nevertheless, the point is worth making that that basis for finding the threshold crossed is not a very strong foundation for a finding that an adoption is a necessary and proportionate response to protect the children from the risk of harm which has been found proved. It goes without saying that, following the implementation of the Human Rights Act, that is an important criterion for the court to consider when making the choices which were facing the judge in this case.
  11. As to the second possibility, placement with the paternal grandmother, the judge pointed out that his assessment of the mother's prospects of a successful rehabilitation from drugs was a significant but not a decisive factor when considering the grandmother. He was most impressed by the grandmother:
  12. "41 ... I was favourably impressed by her, and more importantly by a number of demonstrable aspects of her history. She has no previous convictions, and has led a sensible and law abiding life, untainted by consumption of drink or drugs, by immoral behaviour, or by dishonesty. She has held down long standing employment of a nature which requires considerable `hard graft' on her part. She provided homes of considerable material comfort, kept up to a high standard, initially to her husband and their son, and more recently (since the breakdown of her marriage) for herself and, on occasion, the boys. She has a very genuine affection for each boy. I regard her as a truthful person. I am quite satisfied that she has given very careful thought to the difficult question of whether to offer a permanent home to the two boys, and that she does not offer to do so lightly. I am equally satisfied that she has a determination, if the opportunity comes her way, to make considerable efforts to further their best interests. The starting point for consideration of her proposal is that she is a good woman, with genuine intentions, and a great affection for the boys. This is a secure platform from which to take on a substantial responsibility.
    42. No witness expresses any significant doubt as to the ability of the grandmother to look after the children physically, or to provide them with a home of a good standard."
  13. The problem, and the reason why the local authority were opposed to this proposal, was the three areas of risk identified in Ms Wenban-Smith's report, which the judge set out as follows:
  14. "... (a) the history of depression suffered from time to time by the grandmother, and its impact upon her ability to cope with two young boys, (b) the effect upon the boys in the event that the mother behaves unsatisfactorily after release, and disturbs the new central family unit, and (c) the similar, and arguably more marked, effect upon release of the father in several years time. She also raises doubts as to the grandmother's ability to control the boys, drawing a parallel between the loss of control of her own son in his teenage years, and the possible future of the boys. She points out that the grandmother will be in her 60s when the boys are teenagers." (paragraph 47)
  15. The judge agreed with this identification of the areas of risk, but he took a very different view of the extent of each area of risk and he then proceeded to consider each of them very carefully and explain why.
  16. As to (a), the history of depression, he pointed out all the life stresses through which the grandmother had been going at the time when she had sought treatment for depression: her stepmother's suicide; her husband's infidelity; her father's death from cancer; the growing recognition of her son's problems with drugs; the eventual break-up of her marriage and the loss of her home. But he pointed out that these did not disrupt her life. He also considered in this context the views of the grandmother's general practitioner, Dr Mahfouz, who had relevant expertise in mental health issues such as this and had seen a great deal of the grandmother, and obviously therefore knew her from this perspective much better than did the psychologist. The general practitioner's view, in her 2-page report, was:
  17. "She has made a good recovery from her depressive symptoms, she is no longer on anti-depressants and is clearly coping well with the current situation. I have no concerns whatsoever about Mrs [G]'s ability to care for the children."
  18. As to (c), the concern that the son went off the rails while he was still at home, did it mean that the grandmother would be unable to control the boys and more importantly would not be able to protect them from the father when she was released? The judge acknowledged that that was an area of risk but he did not rate it as a major one. He pointed, among other matters, to the fact that the psychologist had said that the father's problems did not result from serious dysfunction in or deliberate missocialisation by the grandmother. He concluded that the grandmother had learned some hard lessons from current events about the actions she should take in the future (paragraph 60).
  19. As to (b), the concern about disruption from the mother and destabilisation if she returned to drugs and an unsatisfactory way of life, the judge concluded that the grandmother did have the resolution and understanding to prevent this and that she was not afraid to seek help when it was needed (paragraph 62). He therefore concluded, as he stated earlier in paragraph 48, that these concerns were:
  20. "... not destructive of the grandmother's proposal, but demonstrate that it should be approached cautiously, and with appropriate safeguards."
  21. He then considered the law, first, the principle that the welfare of the children was the paramount consideration in section 1(1) of the Children Act 1989. He also considered Article 8 of the European Convention on Human Rights, and he summed-up the effect of that (in paragraph 70) as follows:
  22. "Under that Article, the rights of all the central family figures in this case are engaged, but particularly those of the two boys. It is plain from the key authorities, and from Article 8 itself, that the permanent removal of a child from its family of birth is a drastic measure, only justifiable in exceptional circumstances, when essential in the best interests of the child. Only if no lesser measure, by which the child can be retained within his family of birth, subject to appropriate safeguards, is sufficient to safeguard his welfare, can his permanent removal from that family be justified, or regarded as proportionate to the aim of protecting his rights. If there is a course available which retains a child within his family of birth, and, upon close scrutiny of its merits and demerits, is appropriate to the welfare of that child, and in particular is sufficient to protect him from the likelihood of suffering significant harm, then his removal and placement elsewhere with a view to adoption cannot be justified in principle."
  23. It is noteworthy that in her very detailed and helpful submissions to this court Miss Carter, on behalf of the local authority, has not sought to challenge that formulation of the applicable principle in this case. I am bound to say that the recent decision of the European Court of Human Rights against the United Kingdom in this context amply supports that formulation.
  24. The judge then considered the threshold in the manner that I have already indicated. He considered the checklist of factors relevant to the children's welfare in section 1(3) of the 1989 Act. He balanced the risk of the emotional harm in the future from the grandmother's proposal against its advantages in keeping the children within the birth family and the potential that that carried for eventual return to the birth parents. He pointed out that an adoptive placement, even if it could take place within the six months predicted, was not entirely risk-free. He concluded by making an order that the children should live with the grandmother, coupled with a supervision order for one year. He made it absolutely plain they should not be returned to the mother and that her access to them should be controlled in the near future.
  25. Turning to the grounds of appeal, of which there are ten, the most important of these are grounds one and two, that the judge gave insufficient weight to the views of the forensic psychologist, Ms Wenban-Smith, and to the views of the children's guardian. In particular, Miss Carter gives examples of the problems identified by Ms Wenban-Smith to which she says that the judge did not pay sufficient attention, such as the grandmother's inability to impose boundaries upon her own son; the difficulties of her withstanding pressure from the parents; the difficulties she would face in refusing contact where that was necessary; the problem of her blaming the mother for her own son's problems; the problem of her possibly favouring her own grandchild, E, against C. These were all not given sufficient weight, in her argument.
  26. The difficulty with all of this is that it is clear from the judgment of the judge that he had given careful consideration to the views of Ms Wenban-Smith and the basis for those views, and he had given equally careful consideration to the grandmother and the impression that she had made upon him in the witness box. It is a completely unjustified criticism of his conclusions that he took all of those matters into account, but in the end reached a conclusion different from that of the psychologist. He is entitled so to do. That is what hearings are for and that is what judges are for. Furthermore, as the paragraph from his judgment which I have quoted makes clear, it is not as if there were not some objective material in the history of the grandmother's own life to back it up.
  27. Secondly, as to the guardian's concerns, these were almost entirely the same as those of Ms Wenban-Smith, and they were very considerably based upon her report. His concern was that there was a real risk that the boys would have unsettled lives for the next 10 years, a risk which, in his view, should not be taken when adoption was available for them. But the specific risk with which the guardian was concerned were the same risks, and the judge considered all of those risks very carefully. It is also the case that the judge has to consider those risks in the light of the law, including the European Convention on Human Rights.
  28. The other point made in relation to the guardian is in ground ten, that the judge was wrong to say that the guardian only supported the care plans with misgivings and reluctance (paragraph 93 of his judgment). Miss Carter tells us, and I am very happy to accept, that that is incorrect. The guardian did support the care plans and did not have misgivings and reluctance in doing so. Nevertheless, it is correct that the guardian regretted that the grandmother had not been formally assessed, and that he points out in his report that he was initially impressed with her commitment and his concerns were the result of having read Ms Wenban-Smith's assessment. He himself was obviously favourably impressed by the grandmother. The judge's statements about her to some extent drew upon what he said in paragraph 37 of his report:
  29. "Mrs [G] was a pleasant woman with a nice, comfortable home. She has a genuine love of the children and she wants to put forward what she genuinely believes will be best for the children. However, the Court will take an objective and evidence based view of the long-term best interests of the children as their welfare is paramount in the court's consideration."
  30. That is exactly what the judge was for and in my judgment that is exactly what the judge did.
  31. The third ground is to my mind astonishing. It is suggested that the judge should have considered the alternative of a placement with the grandmother under a care order, which is what the guardian suggested should the judge favour such a placement. Given that the local authority were not suggesting that they were in any way prepared to place the children with the grandmother under a care order, it scarcely lies in their mouth now to complain that the judge did not press them further on that. The local authority clearly came to this case with one view and one view alone, and a judge cannot in any way insist on a placement with the grandmother under a care order if that is the order that he makes. It is unfair to criticise him for not following this up.
  32. The fourth ground is to criticise a finding of fact about whether the grandmother had given the parents money to set themselves up as drug dealers. It was for him to assess the evidence about what the mother and the grandmother had said to Ms Wenban-Smith against what had been said in the witness box and to reach a factual conclusion, which was that the grandmother had not deliberately given them money for the purpose of setting themselves up as drug dealers. It would be impossible for this court to interfere with that conclusion.
  33. The fifth ground is that he failed to give sufficient weight to the parental denials of aspects of their care which he had found proved. This was of marginal relevance given his clear view that the parents should not be in the picture for some time in any event.
  34. The sixth ground is that he failed to give sufficient weight to the psychologist's views on the likelihood of the mother remaining drug-free. Again, this is only relevant because one of the advantages of the placement with the grandmother is the potential it offers for reuniting the boys with their mother, and indeed their father in due course should that relationship survive. But the judge was clearly alive to all the reasons which might mean that the mother was unable to sustain her commitment to remaining drug-free. He mentions all of those. He knew the difficulties that she would face. He gave some weight to the evidence of the mother's key worker in the unit in the prison where she had been having treatment, and reached the conclusion that he did. It cannot be suggested that he was not entitled to reach that conclusion.
  35. The seventh criticism is that he is placed undue weight on the views of the general practitioner. I have already explained that the views of the general practitioner were considered in the context of the relevance of the grandmother's history of depression. Again, it is impossible to suggest that those views are not highly relevant to that particular point. The point is made that the overall conclusion reached by Ms Wenban-Smith was based on a much fuller appreciation of all the papers and all the evidence and all the factors in the case than could possibly be available to the general practitioner, who was only doing her job as a general practitioner. That of course is correct. If the judge had relied upon her views as the overall answer to the case, that would have been an appropriate criticism. But he did not. He relied upon her views in assessing the sources of and the prognosis for the grandmother's history of depression, and she was eminently well qualified to do that.
  36. The eighth ground is not one upon which Miss Carter places much emphasis. The judge stated that the foster placement had to end fairly soon, whereas the reality is that the foster placement can continue until the children are placed for adoption. But there is no indication that the judge had misunderstood that fundamental point and thought that the foster placement would have to end before that. The main point, of course, is that the local authority were saying, "We want these children to be placed for adoption as soon as possible and we confidently predict it can be done within six months." So on any view the foster placement was not going to continue. The local authority were not considering that the children could remain in foster care, whether technically short-term or whether of a more open-ended duration, pending some further consideration of the possibility of reuniting them with their birth family.
  37. The ninth ground is that the judge made strong comments about the perceived unfairness to the grandmother, in that there had been no assessment of her. The point is made by the local authority that by the time it got to the hearing everybody agreed that there was no purpose to be served by that. The court would not be assisted. It had enough information to make up its mind on the evidence available. If that is the case, the judge was entitled to reach the conclusion that he did about what was in the best interests of the children. It is not suggested that he only reached that conclusion because of the perceived unfairness to the grandmother in not having had a formal assessment. If every judge who made a comment about the perceived unfairness of certain practices of the authorities in the course of care proceedings were accused of having reached the wrong conclusion as a result, I fear that very few conclusions by judges would stand.
  38. I have now dealt with all the grounds of appeal. In my view none of them individually, nor their totality collectively, is sufficient to entitle this court to intervene with the judge's carefully considered conclusions. These cases are all about assessing risks. The local authority may well take a different view from the judge. The local authority cannot possibly be blamed for forming their views on the basis of Ms Wenban-Smith's report, supported, as it was, by the guardian. But in the end it is for the judge to decide where the children's future should lie and not for the local authority. Attaching different weight to various factors from the weight that they have been given by the local authority or by the guardian is not the same as attaching insufficient weight in legal terms, as Miss Platt pointed out in her skeleton argument. There are also cases in which judges should be prepared to take risks which it is not surprising that local authorities are not prepared to take. Of course they have to do it carefully on the totality of the evidence, which includes their own assessment of the witnesses before them. They have to do it in accordance with the law, and I have pointed out that the justifications put forward for the permanent adoptive placement of small children who have suffered no significant harm as yet, have to be relevant and sufficient. I cannot deny that this was a difficult case and a difficult situation in which to weigh up the various factors, but that is exactly what the judge did. He did it with very considerable care, in a judgment in which he lays bare some very well reasoned thinking for his conclusions. I, for one, would dismiss this appeal.
  40. ORDER: Appeal dismissed; appellant to pay the third respondent's costs of the appeal to be the subject of a detailed assessment.
    (Order not part of approved judgment)

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