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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> B (A Child), Re [2012] EWCA Civ 737 (31 May 2012) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2012/737.html Cite as: [2012] 2 FLR 1358, [2012] EWCA Civ 737 |
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2012] EWCA Civ 737 | ||
B4/2012/0871 |
CIVIL
DIVISION)
ON APPEAL FROM
BRIGHTON
COUNTY COURT
HER HONOUR JUDGE RAESIDE
UR11C00108
Strand, London, WC2A 2LL |
||
2012 |
B
e f o r e :
and
LADY JUSTICE
BLACK
____________________
| |
||
B (A child) |
____________________
by
Fitzhugh Gates Solicitors) for the Appellant
Deborah Shield (instructed
by
East Sussex County Council for the First Respondent, Holden and Co for the Second Respondent mother, WMC Legal LLP for the Third Respondent father and Harney and Wells for the Fourth Respondent
child))
Hearing dates : 17th May
2012
____________________
Crown Copyright ©
Black LJ:
been
born
in November 2007. He came into local authority care on a voluntary
basis
in June 2011 and has
been
living with foster parents since then. The local authority (LA)
began
care proceedings in relation to him in September 2011. The respondents to the care proceedings are J's parents and J himself, through his guardian.
2012,
Judge Raeside refused her application to
become
a party to the care proceedings as a first step towards that. This is her appeal against that decision,
brought
with permission from McFarlane LJ.
by
Judge Raeside. A transcript was apparently requested
but
did not materialise in time for the appeal which is regrettable given that nearly two months have elapsed since the hearing which should have
been
ample time for a transcript to
be
prepared. The note of judgment was agreed
between
counsel
but
was not submitted to the judge to
be
approved as it should have
been.
Although in many ways a very good note, it is lacking in that it indicates that the judge quoted passages from documents in the court
bundle
but
does not indicate precisely which passages. I was only prepared to proceed on the
basis
of it
because
it was necessary to determine the appeal urgently so that the proceedings in relation to J are not held up.
brief
history of events in J's family and of the proceedings that have
been
brought
in court about him. Inevitably given the context in which this appeal arises, there remains debate and confusion about some of this history and perfect certainty and clarity will not
be
possible.
born
in February 1991 and is even now only 21. It appears that F met M when she was in her early teens and through him, M and PGM met. M was homeless and moved into PGM's home where she was looked after
by
PGM. M alleges that she shared a
bedroom
with F at the property, having a sexual relationship with him when she was 13 years old, and that PGM was aware of that and permitted it; PGM denies this and says that F was not living there at the time. PGM also denies M's account that she, PGM, signed the consent forms for M to have a termination when she
became
pregnant in August 2005 at the age of 14.
born
in 2007, M and F moved to their own accommodation. There is a dispute
between
them and PGM as to whether M allowed J to
be
cared for
by
PGM thereafter. PGM's case is that for a period she looked after J overnight for several nights a week. However, from the statement that PGM made in March 2011 in support of her proposed application for contact with J, it appears that whatever contact there was had ended
by
the
beginning
of October 2009.
before
this was finally resolved. It seems that initially leave was given on the papers
but
that M then objected and it was revoked. On 10 June 2011, when there was due to
be
a contested hearing to determine whether leave should
be
granted, the parents did not attend court and leave was granted to PGM to apply for
both
contact and residence. The order records in a preamble that M had given permission for PGM to care for J overnight.
by
8 July 2011. The resulting report can
be
found in the appeal
bundle
in a version which is undated
but
apparently dates from about 12 July 2011. I shall need to quote passages from this report and the later viability report and in so doing I intend to substitute initials for the names in the reports without cluttering the quotations with square
brackets
to indicate that this has occurred.
because
of his limited interactions with other
children.
be
cared for
by
PGM and that they considered that he would
be
likely to suffer significant harm in her care. It detailed various allegations made
by
M and F, and some made
by
PGM's daughter CB, about PGM's conduct whilst they were living in her care. It is important to record immediately that PGM disputes many of these allegations and that they have not
been
tested
by
the giving of oral evidence. They included the allegation that PGM drank excessively, that she was aggressive and violent, that food cupboards were locked, and that F was not allowed into the house when he returned from school and would have to wait outside for up to 3 hours.
B30)
that she:
"denies that she drank alcohol during herchildren's
![]()
childhood
and [says] that she only
began
to abuse alcohol after her mother's death and when [her partner] KR left her. She states that she drank excessively with her partner GT. This relationship was violent and volatile. Police were called to this address on several occasions. PGM states that she has not drunk alcohol since she asked her partner GT to leave in April 2011."
B28)
the author said:
"Should the Local Authority deem it appropriate to initiate Care proceedings then PGM couldbe
made party to the proceedings and undergo the relevant assessments which could inform the Courts Final Care Plan for J."
and at paragraph 5(f) (
B31):
"The Local Authority cannot comment on whether J is likely to suffer significant harm under PGM's care without further assessment of her alcohol use, however,by
the reports obtained from her
children
and M the Local Authority would not currently recommend that J
be
placed under PGM's care without further assessments.
By
the virtue [sic] that
both
her
children
have reported
childhood
abuse and their insistence that J is likely to suffer significant harm under PGM's care, the Local Authority would not at this time deem it in J's
best
interests to
be
cared for
by
PGM or indeed have unsupervised contact with her."
Paragraph 6 reverts to the question as follows (
B31):
"6.3 It appears from information gathered that PGM has notbeen
able to sustain positive relationships with her extended family and her own two
children
[who] reported that they experienced abuse under PGM's care and showed deep concern in her application for residency of J. PGM denies that she drank excessively whilst her own
children
were growing up and shows little understanding as to why her own
children
do not speak to her any more."
6.4 PGM is currently singlebut
has a history of forming relationships with males who are violent or drink alcohol excessively. She reported that she has
been
unlucky with her choice of partners in her life, however, showed little reflection on the relationship patterns she has formed. …
6.6 AlthoughChildren
Services have little evidence to support F, CB, and M's claims against PGM, their reports do raise serious concerns in respect to PGM's application to the Court to provide care for J.
"7.1 In regard to PGM's application for Residency of J it is the Local Authority's view that further assessments such as psychological, psychiatric and alcohol testing would need tobe
undertaken on PGM to establish whether she is able to provide J with appropriate care and a safe home environment.
7.2 In regard to PGM's application to the Courts for a Contact Order, it is the Local Authority's view that contactbetween
PGM and J would need to
be
supervised and
be
in J's
best
interests. The Local Authority does not want to confuse J any further
by
introducing contact with PGM at this stage."
behalf
of PGM told us that following the filing of the report, there was a hearing in the Family Proceedings Court in the private law proceedings at which LA was represented although not a party, and that at that hearing, LA supported there
being
assessments in accordance with the report
but
declined to pay any of the costs, which it suggested should
be
met through PGM's public funding. As that was not agreed, a further hearing was listed to deal with the question
but
the proceedings were subsequently transferred to the county court on the
basis
of complexity, the care proceedings were
begun,
and it seems that concentration turned from the private law proceedings to the care proceedings and PGM's application to
become
a party to them which was issued on 3 November 2011.
become
a party was an agreement
by
all parties that there should
be
a preliminary (or "viability") assessment of PGM prepared
by
LA
by
16 December 2011. The assessment produced is entitled "Interim assessment report for relatives/friends wishing to care for
child/ren".
Unhelpfully, it is undated and no author has appended his or her name to it. It reflects the allegations made in the earlier report about PGM and contains further information about her, to some aspects of which I will refer later. It seems that the author had access to material from the police and from the social work file as well as from discussion with PGM herself.
being
cared for
by
PGM, her level of honesty with professionals, the problems in her relationships with her own
children
and with M, and her violent and aggressive relationships with partners. The author identified areas which required further assessment and also issues that needed to
be
addressed including "relationship issues within the family" and in particular the "acrimonious relationship"
between
the parents and PGM in relation to which "a great deal of work would need to
be
done with all parties" (C6). The author also commented further on J's needs, saying that he would need a living "environment which is free from adults engaging in ongoing violence, aggression and frequent heated squabbles, particularly given his previous experiences" (C7).
"Further work and assessment will need tobe
undertaken with PGM to ensure that she is able to care for J appropriately and meet his needs.
Conclusion
I recommend that prior to any assessmentby
the family plus services, PGM should have a psychological assessment in order to ascertain her view on what has happened in the past and the impact that this has had on her relationships with her son, daughter, and with M. It should also assess her ability to
be
honest with professionals and make any necessary changes to her lifestyle and attitude required to care J appropriately [sic]. In addition, I recommend that PGM undertakes an assessment relating to her alcohol use past and present to include alcohol testing.
It is my assessment that until the aforementioned work is undertaken with PGM it is not possible to draw conclusions regarding her ability to care for J in the long term."
2012,
she considered PGM's application to
be
joined as a party to the care proceedings. There was also a statement each from M and PGM dating from March 2011 and in addition the judge was aware that PGM had started having contact with J again, organised
by
LA. This commenced last year and is continuing. We were told
by
Ms Loeb that M was against it and that part of the motivation for the issue of care proceedings was LA's wish to ensure that it took place. A further piece of evidence
before
the judge was an analysis of PGM's liver function prepared from a sample produced in May 2011; the results demonstrated normal levels and were said to "provide no indication of recent excessive alcohol consumption".
but,
as her judgment reveals, she undoubtedly recognised that there was a significant amount of dispute about the family history and about how PGM had conducted herself and that the disputed allegations were as yet untested.
The arguments advanced in support of the appeal
behalf
of PGM that the judge either adopted the wrong approach to the issue of whether PGM should
be
joined as a party or, if she set about her determination in the right way, arrived at an answer which was not open to her on the evidence.
become
a party rather than an application for leave to apply for a section 8 or other order, the judge was right to refer to the matters set out in section 10(9)
Children
Act 1989 and to the merits of PGM's proposed application to
be
J's carer. However it was submitted that the judge erred in her evaluation of the relevant factors in ways I will set out in a moment and that she was too exacting in her approach to the merits of PGM's case to
become
J's carer, looking for a good arguable case when all that was required was that the case should
be
arguable.
be
at fault in a number of respects.
but
recommending further assessment. It was submitted that the judge's unduly negative view of the reports led her to a wrong conclusion that PGM's prospects of success were so slim that her application should not
be
allowed to proceed.
base
her submission that the reports were negative only on an analysis of the terms of those reports. She invited our attention also to LA's support for further assessment following the section 37 report (subject only to a dispute as to who should pay for it) which she submitted showed that LA itself did not view the report as negative. She also relied upon LA's arrangement of contact for PGM with J as indicative of a similar view.
be
seen in the extract from the section 37 report which I set out earlier, without assessment LA was unable even to form a view about whether J would
be
safe and appropriately cared for, the author of the report saying that without assessment she "cannot comment on whether J is likely to suffer significant harm under PGM's care" (paragraph 5(f) ibid), and that assessment "would need to
be
undertaken….to establish whether [PGM] is able to provide J with appropriate care and a safe home environment" (paragraph 7.1 ibid). The overall flavour of the report was negative and the author saw assessment as a process that "could"
be
carried out (paragraph 5(c) of the section 37 report) rather than "should"
be
carried out. Meanwhile, she was unwilling even to recommend a reintroduction of contact.
but
largely as a response to LA's concerns. The author said that further assessment was required of PGM's understanding of the "concerns regarding PGM's ability to protect M from risk of sexual harm" and "concerns about her level of honesty with professionals". It is notable that it was considered that if assessment were to
be
contemplated, a social work assessment alone would not
be
sufficient and should
be
preceded
by
a psychological assessment. Change was already identified as necessary with a "great deal of work" required on family relationships in particular.
being
unfavourable/negative and as raising a number of concerns which she enumerated. It can
be
seen from the note of judgment that she referred in judgment to the terms of the reports themselves so had their precise terms well in mind.
by
Ms Loeb's arguments
based
on LA's willingness to agree to a further assessment after the section 37 report. It does not follow from this, in my view, that LA viewed PGM's position with any optimism. It was adamantly unprepared to pay for the next assessment itself as can
be
seen from the fact that a hearing had to
be
arranged to litigate the issue of funding. It is not uncommon for a local authority to accept that a potential carer should obtain a report at his or her own expense where this will not give rise to delay or to difficulties for the
child
concerned, even when it has itself already formed a clear view that the carer is unsuitable. Furthermore, things had moved on
by
the time of the hearing
before
the judge with a second assessment having arrived at similar conclusions to the section 37 report, the care proceedings
being
nearer to a resolution and, inevitably, the need for a decision about J's situation having
become
more urgent. Whatever LA thought about further assessment immediately following the first report had
become
largely academic.
be
a significant indicator of its view of PGM's case as a carer either. There are various other reasons why contact may
be
arranged including a willingness on the part of a local authority to ensure that the awaited decision of a court is not pre-empted
by
a relationship
being
lost meanwhile, the local authority's own acceptance (as here) that, depending on the nature of the
child's
future placement, there may
be
a
benefit
in some contact
between
the
child
and a relative, and so on.
benefits
of a family placement for J, which could
be
substantial notwithstanding problematic relationships within the family.
been
cautious in her approach to this untested material, particularly when the parents were not engaging very actively in the proceedings. It was submitted that the judge failed to take account of M's own action in placing J with PGM prior to his accommodation
by
LA (as referred to in the preamble to the Family Proceedings Court order of 10 June 2011) which it was said undermined her allegations that PGM is not a fit person to care for him.
before
the court as to what delay might actually
be
involved in assessing PGM further. The court should, it was said, have joined PGM as a party and the matter could then have
been
listed for a hearing with proper consideration on evidence as to the impact and appropriateness of further assessments; very little delay would have
been
caused
by
the matter proceeding to that stage. Depending on the result of that hearing, PGM's party status could have
been
reviewed and she would no doubt
be
discharged from the proceedings if assessments were not ordered as, it was conceded, she would not
be
able to care for J without
being
further assessed.
The law
by
the time of the care proceedings, PGM had already
been
granted leave to apply for
both
contact and residence in the private law proceedings. The rather unsatisfactory position appears to
be
that the private law proceedings are in limbo, neither joined with the public law proceedings nor withdrawn or dismissed. We therefore explored with Ms Loeb what the implications of the leave granted
by
the Family Proceedings Court were. She did not argue that it entitled PGM to make applications in the care proceedings. She accepted that there were difficulties in the way in which it was granted in that the parents failed to attend the leave hearing with the result that the justices did not have the
benefit
of hearing argument for and against the order. She did not criticise the judge for approaching the matter on the
basis
that the fact that they granted leave was of note
but
not
binding
on her.
become
a party to the care proceedings. It was not an application for directions under section 38(6) of the
Children
Act 1989 or under any other provision to
be
found in statute or rules for an order for assessment involving PGM and J, still less an application for leave to apply for a substantive order such as a residence order. At first sight, it may therefore seem curious that all parties agreed, and the judge accepted, that the provisions of section 10(9) were relevant, as section 10(9) relates to a "person applying for leave to make an application for a section 8 order". However I am satisfied that this was an appropriate approach.
Children
Act 1989 or the Family Procedure Rules 2010 which specifically assists as to the approach that should
be
taken to an application for joinder and the welfare of the
child
is not the paramount consideration in either an application for party status or an application for leave to make a substantive application
because
neither of these applications involves the court in determining "any question with respect to….the upbringing of a
child",
see for example (in relation to joinder/discharge of a party) North Yorkshire County Council v G [1993] 2 FLR 732 and Re W (Discharge of Party to Proceedings) [1997] 1 FLR 128 and (in relation to leave to apply for a section 8 order) Re A and W (Minors)(Residence Order: Leave to Apply) [1992] 2 FLR 154.
being
sought
by
the person who is seeking to
be
joined as a party, reference must
be
had to section 10(9), see W v Wakefield City Council [1995] 1 FLR 170 in which Wall J (as he then was) also considered two other decisions
by
Family Division judges, G v Kirklees Metropolitan
Borough
Council [1993] 1 FLR 805 and North Yorkshire County Council v G [1993] 2 FLR 732. It was not argued
before
us that these authorities were wrong or that the introduction
by
Rule 1 of the 2010 Family Procedure Rules of an overriding objective required them to
be
reconsidered and I can see no reason why they should
be
questioned. It is logical that a judge determining an application to
become
a party to proceedings should have an eye to what may follow joinder. To illustrate this with an obvious example, there would
be
no point in joining someone as a party if they would then inevitably
be
refused leave to
bring
an application in relation to the
child
and would have no other legitimate role in the proceedings.
child.
Certain people are entitled to apply for such an order, certain people require leave to make the application, and there are also situations in which the court can make an order even though no application has
been
made. Section 10(9) is concerned with the factors that may
be
particularly relevant where someone other than the
child
is applying for leave to seek a section 8 order. It provides:
"Where the person applying for leave to make an application for a section 8 order is not thechild
concerned, the court shall, in deciding whether or not to grant leave, have particular regard to
(a) the nature of the proposed application for the section 8 order;
(b) the applicant's connection with thechild;
(c) any risk there mightbe
of that proposed application disrupting the
child's
life to such an extent that he would
be
harmed
by
it; and
(d) where thechild
is
being
looked after
by
a local authority –
(i) the authority's plans for thechild's
future; and
(ii) the wishes and feelings of thechild's
parents."
be
seen that section 10(9) does not contain anything in the nature of a test
by
which an application should
be
judged, nor even criteria which must
be
satisfied
before
leave can
be
given, nor is anything of the kind to
be
derived from the rest of section 10. Neither does the subsection circumscribe the factors that can
be
taken into account in determining the leave application; it leaves the court to take into account all the material features of the case and merely highlights certain matters which are of particular relevance.
but
has
been
acknowledged in the authorities to
be
of relevance is the merit of the proposed application. The first authority to which we were taken in this regard was G v Kirklees Metropolitan
Borough
Council (see above). There a
child's
aunt applied to
be
made a party to care proceedings in relation to the
child
with the object of seeking leave to apply for a residence order.
Booth
J held that section 10(9) did not preclude the court from considering all the circumstances of the case or from having regard to the merits of the application. She pointed out that in Re A and W (see above) the Court of Appeal examined, on a
broad
basis,
the merits of the proposed substantive application and considered whether it was one which had a reasonable likelihood of success. Counsel for the aunt contended that that was too stringent a test at that stage and that it was sufficient for the aunt to show that she had an arguable case
but
Booth
J did not accept that, requiring the aunt to "establish a case that is reasonably likely to succeed if she is going to
be
joined as a party in order to seek relief".
became
for some time the guide to the proper approach to an application for leave to make a section 8 application. Re M in fact concerned an application
by
a grandmother for leave to apply under section 34 for contact with a
child
in care and section 10(9) does not apply to such an application. However, the Court of Appeal considered the factors set out in section 10(9) to
be
relevant also to a section 34 application and therefore commented upon section 10(9) and, in that connection, dealt with the question of the relevance of the merits of the proposed application. In the course of so doing, Ward LJ set out the approach he thought should
be
taken to this consideration. He said that the application for leave would of course fail if it was frivolous, vexatious or otherwise an abuse of the process of the court, and that it would also
be
dismissed "if it failed to disclose that there is any eventual real prospect of success, if those prospects of success are remote so that the application is obviously unsustainable". He said (at page 98) that the applicant
"must satisfy the court that there is a serious issue to try and must present a good arguable case. 'A good arguable case' has acquired a distinct meaning: see the long line of authorities setting out this as the convenient approach for the grant of leave to commence proceedings and serve out of the jurisdiction under RSC Ord 11. One should avoid unprofitable inquiry into what precisely these turns of phrase mean. Their sense is well enough known – is there a real issue which the applicant may reasonably ask the court to try and has he a case which is shown to have abetter-than-even
chance, a fair chance, of success? One should avoid over-analysis of these 'tests' and one should approach the matter in the loosest way possible, looking at the matter in the round
because
only
by
such imprecision can one reinforce the importance of leaving the exercise of the discretion unfettered."
Child
Case: Parental Involvement) [1996] 1 FLR 857 which was cited to us as authority that the test propounded
by
Booth
J in G v Kirklees County Council (see above) was too high. However I did not find it particularly helpful. It is clear that such comments as
Butler-Sloss
LJ made at page 865 were obiter and the context seems to have
been
the rather different one of a section 91(14) order.
been
significantly involved in the
child's
life on the
basis
that
bringing
up the
child
would
be
too much of a
burden
because
of her age. She applied for party status in the care proceedings and for leave to issue an application for a residence order. The Court of Appeal stressed the importance of appreciating the value of what grandparents have to offer. Thorpe LJ said at [19]:
"Judges shouldbe
careful not to dismiss such opportunities without full inquiry. That seems to me the minimum essential protection of Arts 6 and 8 rights that Mrs J enjoys, given the very sad circumstances of the family."
below
had applied the approach set out
by
Ward LJ in Re M. Thorpe LJ observed that what was said in Re M was said in relation to the discharge of the judicial task under section 34(3) and not directly in relation to the discharge of the judicial task under section 10(9). He commented (at [17]) that judges had applied "the three-fold test formulated
by
Ward LJ" "in the determination of applications under s 10(9)" which, he said, "has had the laudable purpose of excluding from the litigation exercise applications which are plainly hopeless". However, he re-focussed attention on the terms of section 10(9).
"The statutory language is transparent. Nowhere does it import any obligation on the judge to carry out independently a review of future prospects."
"[18] I am particularly anxious at the development of a practice that seems to substitute the test, 'has the applicant satisfied the court that he or she has a good arguable case' for the test that Parliament applied in s 10(9). That anxiety is heightened in modern times where applicants under s 10(9) manifestly enjoy Art 6 rights to a fair trial and, in the nature of things, are also likely to enjoy Art 8 rights."
but
simply that, as I have set out above in summarising her submissions, it was too much to ask for a good arguable case and all that should
be
required is that the case
be
arguable. This seems to me to
be
consistent with the thinking
behind
Thorpe LJ's judgment in Re J. His approval at [17] of the exclusion of applications that are plainly hopeless shows that he did not consider the merits to
be
irrelevant even though they are not mentioned specifically in section 10(9) and I take it from what he says in that paragraph and in [18] that he would look for an arguable case and not something higher than that. Equally, however, he was clearly anxious to prevent the grant of leave hinging entirely on the merits of the proposed application when that was not a factor singled out for mention in section 10(9).
be
forgiven for indulging myself with my own summary of the position which I hope reflects Thorpe LJ's view albeit put in slightly different terms. As I said earlier, I do not see section 10(9) as containing a test.
By
picking out some factors to which the court should have "particular regard", it acknowledges
by
implication that there may
be
other factors which the court has to consider. It would
be
wrong, in my view, to try to list or limit these factors which will vary infinitely from case to case. One amongst them is plainly the prospects of success of the application that is proposed; leave will not
be
given for an application that is not arguable. I do not intend to attempt a definition of what is arguable
but
I would make a few observations
before
I leave the question of the proper approach to an application to which section 10(9) applies, whether directly or through an application to
be
joined as a party with a view to seeking the sort of outcome that could
be
the subject of a section 8 order.
be
sufficient to entitle him or her to leave under section 10 or to joinder as a party. I say this
because
section 10(9) picks out other factors as requiring particular regard and I think it must follow that there may
be
situations in which, when the judge exercises his or her discretion,
balancing
all the relevant factors, the presence of an arguable case is outweighed
by
those other factors or, indeed,
by
any other factor that carries particular weight in the individual circumstances of the case. Suppose, for example, that the applicant wishes to advance a
barely
arguable case with many attendant problems in relation to a
child
with special needs who is securely placed with an irreplaceable long term family who will
be
unable to withstand the rigours of any further litigation.
children,
for applications or proposed applications to
be
checked at a very early stage and without wholesale investigation. The court has a
broad
discretion to conduct the case as is most appropriate given the issues involved and the evidence available, see for example Re
B
(Minors((Contact) [1994] 2 FLR 1, Re C (Contact: Conduct of Hearings) [2006] 2 FLR 289 and Re N; A v G and N [2009] EWHC 1807 (Fam). Accordingly, some cases can appropriately
be
determined on submissions alone, for example. Furthermore, it is not always necessary for findings to
be
made in relation to all (or sometimes any) disputed facts, perhaps
because
the result does not depend upon them or
because
there are quite sufficient undisputed facts to form the foundation of the decision that needs to
be
taken. What is more, there is no absolute entitlement to assessment with a view to caring for a
child;
TL v LB of Hammersmith and Fulham [2011]
EWCA
Civ
812 contains observations relevant to this point.
be
careful not to dismiss the possibility of a
child
being
cared for
by
grandparents "without full inquiry" must
be
read in the context of the facts of the particular case he was considering. The prospects of a grandparent taking over the
child's
care must, of course, always
be
looked into carefully
because
it can
be
greatly to a
child's
benefit
to
be
kept within the family
by
such a placement. Our attention was invited also to Re C (Family Placement) [2009]
EWCA
Civ
72 which exemplifies this.
But
there are various levels of investigation of the possibilities. At one end of the spectrum, the grandparent's proposals may need to
be
explored at a full hearing with reports and on oral evidence; at the other a careful
but
limited examination of the situation
by
the local authority may disclose overwhelming reasons why care
by
the grandparent is obviously not an option. I do not think, therefore, that what Thorpe LJ said should properly
be
interpreted as a requirement that any grandparent who wishes to put forward proposals should
be
joined as a party to existing care proceedings or given leave to issue a section 8 application or still less permitted to air their case at a full hearing on evidence. Sometimes some or all of these things will
be
appropriate, sometimes none and it is for the judge to weigh the various factors and decide what the proper order is in the individual case. This court is slow to interfere with discretionary decisions of this kind.
be
of [the] proposed application disrupting the
child's
life to such an extent that he would
be
harmed
by
it". In Re M (supra), Ward LJ said (at page 95/96) that this particular provision was directed at risk to the
child
arising from the proposed application rather than arising from the making of any order that might result from it. Delay occasioned
by
or associated with the application is an obvious source of disruption and harm and must properly
be
considered under this heading.
Discussion concerning the judge's decision
be
said to fall under each of its paragraphs as well as paying regard as she was required to do to the merits of the proposed application and to the circumstances of the case generally.
be
made on
behalf
of PGM. A particularly weighty consideration was that she is J's grandmother and the judge had in mind the high importance that should
be
placed on a family placement. I do not accept that this was a factor to which she attributed too little weight. She also had proper regard to the human rights of PGM. Furthermore, she
bore
in mind that LA had arranged contact for PGM (see the postscript to the judgment). In addition, in considering the question of excessive use of alcohol, she paid attention to the negative liver function test that PGM had had the previous year.
be
joined as a party, she put into the scales in favour of joinder that it would allow the issues to
be
fully tested.
but
real difficulties that needed full exploration and a very full expert's report. She saw the prospect of a successful outcome for PGM as very slim and there was material to justify this view. I will concentrate on the matters that were not/could not realistically
be
challenged
by
PGM to demonstrate this.
Because
of his history to date, J is a "very confused little
boy"
who, the reports identified, needs a stable home
background
with nurturing and encouraging care and free from adults engaging in violence, aggression and frequent heated squabbles. However the picture that has emerged so far of PGM's situation is of a dysfunctional and deeply divided family in which excessive alcohol use and violence have featured in the not too distant past.
between
them are such that such allegations have
been
made. Not only does PGM have a very acrimonious relationship with M, she also has serious difficulties in her relationship with F and his sister, neither of whom speaks to her any more as we are told in the section 37 report. She appears to have no understanding of why this is so as her case is that they had positive
childhoods
in her care. Her siblings apparently no longer speak to her either
because
they did not agree with her caring for their mother (who died in 2008) and wanted their mother placed in a residential home.
be
called due to incidents of violence exacerbated
by
alcohol use, the police having
been
called out as recently as March 2011.
be
that the author of the viability assessment was mistaken in thinking that she was not open about her other convictions
but
the fact remains that she received a caution in 2005 (for what, she cannot remember) and has an old conviction for assisting in a robbery in 1986 for which she received a suspended sentence.
be
the long term carer of her grandchild with his particular needs and vulnerabilities.
but,
as McFarlane LJ observed when giving permission on paper for this appeal, it has to
be
borne
in mind that PGM cannot
be
blamed
for listing delays such as that
between
the issue of her application for party status and the hearing. However the judge was not in error, in my view, in paying attention to the need to determine speedily where J was going to
be
placed, particularly given his age and his circumstances so far. Delay caused
by
processing an application
by
PGM certainly gave rise (to use the words of section 10(9)) to the risk of disruption to his J's life to the extent that he would
be
harmed
by
it.
be
occasioned
by
assessment of PGM. It was not necessary for her to adjourn to a hearing with further evidence about this as there was already sufficient material to lead her to the view that assessment would take a significant amount of time. The existing reports contemplated that prior to assessment
by
the family plus services there would need to
be
a psychological assessment of PGM. Further social work assessment would have to follow that, and there was also a requirement for "a great deal of work … to
be
done with all parties" to address the acrimonious relationships in the family. Such disputes as to fact as were material to PGM's ability to look after J would also need to
be
resolved.
behalf
of PGM (which she recited in her judgment) that delay can
be
justified if it gives the
child
a chance of a placement in his
birth
family
but she was still entitled to take delay into account, as she did, as part of the circumstances relevant to her determination.
Laws LJ: