BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales Court of Appeal (Civil Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> B (Minors) [1997] EWCA Civ 2535 (21st October, 1997)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/1997/2535.html
Cite as: [1997] EWCA Civ 2535, [1998] 1 FLR 520, [1998] 3 FCR 351, [1998] Fam Law 258

[New search] [View without highlighting] [Printable RTF version] [Help]


JISCBAILII_CASES_FAMILY

B (minors) [1997] EWCA Civ 2535 (21st October, 1997)

IN THE SUPREME COURT OF JUDICATURE LTA 97/6850/J
IN THE COURT OF APPEAL (CIVIL DIVISION) FC2 97/7127/F
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR JUSTICE SINGER )
Royal Courts of Justice
Strand
London WC2

Tuesday, 21 October 1997

B e f o r e:

LADY JUSTICE BUTLER-SLOSS
LORD JUSTICE THORPE
- - - - - -


B (MINORS)


- - - - - -

(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 831 3183
Official Shorthand Writers to the Court)

- - - - - -

ELEANOR PLATT QC & JOY OKOYE (Instructed by Sab & Co., London, SE17 2AL) appeared on behalf of the (First Respondent) Applicant
MARK EVERALL QC & MISS S ROBINSON (Instructed by Watson Woodhouse, 2 Norfolk Place, Middlesbrough) appeared on behalf of the (Applicant) Respondent
RODERIC WOOD QC (Instructed by Principal Registry of the Family Division) appeared on behalf of the Official Solicitor

- - - - - -
J U D G M E N T
(As approved by the Court )
- - - - - -
©Crown Copyright


LADY JUSTICE BUTLER-SLOSS: I will ask Thorpe LJ to give the first judgment.

LORD JUSTICE THORPE: This application concerns two Nigerian boys, A., and D., who are respectively 10 and 8 years of age. The litigation has been principally between their biological mother and their psychological mother and it has presented Singer J with extraordinarily difficult decisions on at least two occasions.

It is unnecessary to record the history in any detail but in the broadest outline the two boys have lived throughout their lives with their foster parent, Mrs P., in Middlesbrough. There they have no influences or experiences that would help them to comprehend and grow up within their Nigerian heritage and culture. Their mother lives in London and the arrangements for contact, which for some years operated reasonably smoothly, ran into troubled waters and that difficulty was exacerbated by the commencement of litigation.

The principal judgment to determine whether the two boys should continue to live with their psychological mother or whether they should be transferred to their biological mother was taken by Singer J on 30 July 1996. His conclusion in a finely balanced case was that they must move, for their longer term needs outweighed the undoubted short term trauma that a move would engender. That judgment was the subject of application to this court which did not succeed and accordingly the future direction of the children's lives was determined by that primary judgment.

There were a number of applications to the Judge thereafter. We have been furnished with transcripts of a hearing on 19 December 1996 and a hearing on 25 April 1997. All were concerned in that period with the difficulty of implementation, since the boys' reaction to the judgment of 30 July 1996 was to demonstrate their hostility and their determination to resist in difficult and distressing behaviour in contact with their mother. It is possible to see that the prospects of overcoming the enormous practical difficulties of implementation were evaporating in the Spring of this year. Quite properly on behalf of the biological mother applications were mounted for a Tipstaff order to enforce. It is perfectly plain from the transcript of the judgment on 25 April 1997 that the Judge was not prepared to contemplate such a potentially damaging method and in preference set up arrangements for a full investigation of the way ahead at a fixture in June. The judgment that resulted from that fixture, reversed the decision of July 1996. It is dated 19 June and is the judgment which Miss Platt, on behalf of the biological mother, seeks leave to appeal.
Her application is mounted on the basis of fresh evidence which shows that the very carefully prepared meetings between the applicant and the two boys have been surprisingly successful. The affidavit of D. S., a social worker with the London Borough of Camden, shows particularly in paragraph 26 that the first meeting between the mother and children went off surprisingly well and far beyond the anticipation of the professionals. The same register was made of a later attempt at contact. So, says Miss Platt, had the Judge had that foresight he might well have taken a different line. Of course the contrary interpretation is that the boys, reassured by the judgment of 19 June, reversing the management and confirming them in their placement with Mrs P. has freed them to relate more naturally to their mother.

In advocating the draft notice of appeal Miss Platt says that the Judge is to be criticised for his failure to adopt a robust effort at enforcement not short of the physical removal of these children from their Middlesbrough home by the agency of the Tipstaff. She says there is precedent for that in the decision of this court in relation to the Zulu boy, S. That is an argument that seems to me to be a perilous one since subsequent developments in the life of the Zulu boy demonstrate that the endeavour to override his deep-seated attachment to his psychological mother proved disastrous in outcome.

Finally, Miss Platt says that ground four of her draft notice is the kernel of her complaint. The Judge placed too much weight on the wishes and the behaviour of the children and insufficient weight on the unanimous view of all the experts as to their long term needs and welfare. That submission is simply unsustainable against the reality that between the two fundamental judgments there had been a major shift in expert opinion to the extent that even Dr Sein, the expert advocating the principle of return to the biological mother, accepted that it was an agonisingly difficult principle to apply to this case. He even registered his relief at the impossibility of embarking on his theory that a bridging placement should be attempted, since investigation had revealed that there was simply no bridging placement available.

The Judge had before him an agonisingly difficult choice. It seems to me that realistically it would be impossible within the parameters defined for the role of this court to contend that the decision at which he in fact arrived was the wrong decision, particularly since it was a decision that had the support of the Official Solicitor acting for the children.

Miss Platt has presented her application with great skill and has in the most attractive way said what there is to be said in favour of appellate review. But it is, in my judgment, a hopeless application. This is a decision at first instance which this court recognises to be a discretionary decision arrived at after very careful consideration of all the issues. It is a decision that is simply not open to challenge since I, for my part, can see no realistic prospect of this court intervening or altering in any way the order that was made by the Judge. It is reassuring to know that this Judge retains the management of the case. He has already made a further order in respect of contact on, I think, 3 September and, by that order, he has specifically provided for a further hearing on 24 November when the question of continuing contact to the children will be determined. There is an obvious possibility that building on the success achieved since June there will be a gradual development of the relationship between the mother and the children, not through the absolute order transferring residence from one household to another but by the progressive development of contact, of course moving to liberal staying contact within the school holidays. But it does seem to me that it is upon that prospect that the applicant would wisely rest her future hopes.

LADY JUSTICE BUTLER-SLOSS: I agree that the application for leave should be refused. One can very well understand why Miss Platt's client sought the leave of this court, the Judge having dramatically changed his mind between two years. But I have to say for my part that his change of mind and reversal of his order was courageous and was a decision which I do not believe in the agonisingly difficult circumstances of this case the Court of Appeal could possibly interfere with. The more difficult the decision the less easy it is for the Court of Appeal to intervene.
Consequently I entirely agree with my Lord that there is no prospect of success on appeal and that all that can be said for the mother are two things. One is she could not have had her case better put to this court and, secondly, that she should reflect upon the wise words of my Lord, Thorpe LJ, that the way forward should be to make contact work and have increasingly long periods of, I hope, a happy relationship with the children during the periods that they go to her.


Order: Application for leave to adduce further evidence granted; application for leave to appeal refused; no order as to costs save legal aid taxation of the applicant and respondent's costs; direction given re identification of parties; transcript of judgments to be provided at public expense.




BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWCA/Civ/1997/2535.html