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B (Children) [2014] EWCA Civ 814

Application for permission to appeal findings of fact, placement of children with paternal grandparents under an SGO, and reduction in contact.

The application for permission to appeal was brought by the young mother of two children (aged 3 and 18 months), following the decision to place the children with the paternal grandparents under a special guardianship order ("SGO"). 

The parents largely accepted the threshold document alleging neglect, failure to engage with offers of support, exposing the children to domestic violence, and failure to prioritise the children's needs.  During proceedings, the children's great-grandmother (AK) offered her home as a base for the mother to live with the children.  An interim care order was made, with placement of the children with AK as a designated local authority foster carer and the mother continuing to live in the home with AK and the children.  A written agreement set out that AK would be responsible for welfare decisions and would supervise all contact between the mother and the children.  The children also stayed with the paternal grandparents for three days and two nights each week. 

At a final hearing, it was asserted that whilst the mother and the children were living with AK, it was in fact the mother who was providing the primary care to the children, with AK taking a back seat; however this evidence was disputed.  The mother advanced a shared care arrangement between her and AK. After three days of evidence, the judge decided to place the children with the paternal grandparents under a SGO.

In applying the welfare checklist, the judge concluded that whilst there are advantages in maintaining the bond with their mother, the children's overriding need was for a secure and stable home.  The judge considered that the removal of the children from their mother's care and placing them with the paternal grandparents was justified in the light of a proportionality assessment considering the positives and negatives of each option.  The judge concluded that the SGO was the only option that would offer the children the guarantee of a stable home life.  Overnight contact with the mother was provided for to take place at AK's home.

The mother issued a notice of appeal and a stay was granted in respect of the removal of the children.  The mother's grounds of appeal included that the judge had made errors of fact, that the SGO was not proportionate to the need to protect the children, and that insufficient consideration was given to the reduction in contact.

The court of appeal noted the considerable difficulties in challenging findings of fact made by judges at first instance, as the appeal court does not have the "wealth of detail" that the trial judge had, including hearing the evidence and being able to assess demeanour.  Although the judge dealt with the dispute as to the extent to which the mother was providing primary care to the children in judgement, the appellate court did not have any notes or transcripts of the evidence.  It was therefore not possible to contemplate overturning the judge's conclusion as to who, between AK and the mother, was the primary carer for the children.

In considering whether the order for placement with the paternal grandparents was wrong, the court considered that the criticisms of the judge's approach to the proportionality argument fell away.  The judge was right to consider that the mother's proposed arrangement of shared care moving towards independence was a fundamental change rather than maintaining the status quo and there were significant concerns about the role AK would be able to continue to play in the light of her health.  The judge engaged with the key issues and could not criticised for giving the greatest priority to finding a secure and stable home for the children now, which could only be achieved by placement with the paternal grandparents under a SGO. 

The final issue raised was the substantial reduction in contact between the mother and the children.  The appellate court noted that it is unlikely to engage in fine-tuning of contact arrangements unless it is plain that the judge made a fundamental error in analysing the relevant issues - there was no such error in this case.  Any issues around contact should have been raised with the judge at first instance and could now be referred back to that judge to revisit the issue if justified. 

Permission to appeal on all grounds was refused as there was no reasonable prospect of success.

Summary by Ariel Ricci, barrister, Coram Chambers.


_____________


Neutral Citation Number: [2014] EWCA Civ 814
B4/2013/3282

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM COVENTRY COUNTY COURT
(HER HONOUR JUDGE WATSON)


Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday, 20 May 2014
 
B E F O R E:

LADY JUSTICE ARDEN DBE
 
LORD JUSTICE McFARLANE
 
LORD JUSTICE McCOMBE 

B (CHILDREN)


(DAR Transcript of  Wordwave International Limited
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Mr Aidan Vine (instructed by Rotherhams Solicitors) appeared on behalf of the Applicant Mother
Miss Davinder Dhaliwal  (instructed by Coventry City Council) appeared on behalf of the First Respondent
Mr Simon Miller (instructed by Johnson & Gaunt) appeared on behalf of the Second Respondent

J U D G M E N T
(Approved)

Crown copyright©

1. LADY JUSTICE ARDEN:  I will ask my Lord, Lord Justice McFarlane, to give the first judgment.

2. LORD JUSTICE McFARLANE:  This is an application for permission to appeal made by the mother of two young children following a decision made by HHJ Watson, sitting in the Coventry County Court, on 25 October 2013.

3. The issue for the judge was to determine the long term placement of the two children and the options, in short terms, were either for the children to remain living with their mother in a shared parenting arrangement in which she was assisted by her own grandmother (therefore the children's great grandmother) or for the children to move to take up full time residence with their paternal grandparents, under the umbrella of a special guardianship order.

4. The judge chose the latter option and it is against that decision that the mother now seeks permission to appeal.

5. The two children are, first of all, a girl, A, born on 4 February 2011 and therefore now aged 3 years, and a boy, M, born on 25 November 2012, therefore now still only some 18 months old.

6. The history of the early years of the eldest child in the mother's care are complicated and do not require detailed repetition in this judgment.  It is sufficient to summarise it thus.  The mother herself is a very young person.  She was born in 1994 and was therefore only some 16 or 17 years of age at the time of A's birth.

7. Prior to A's birth, the social services were sufficiently concerned about the mother's own lifestyle to undertake a number of assessments of options and to offer assistance.  The judge in the early stages of her judgment, and then more particularly the social worker in a detailed statement and latterly counsel for the guardian, Mr Miller, in the course of his very helpful skeleton argument, have described the progress that the mother made in terms of living accommodation with young A during the first two years of A's life.

8. They, at certain times, lived with her own mother or with her own father, or in one of three different supported environments offered to her by the local authority, and also at times with the father, with whom she had a volatile relationship.

9. Also in the middle of this period, when A was some four months of age, she went to live full time with the paternal grandparents.  That ended about five months later, when the mother's itinerant lifestyle recommenced with A living in the mother's care.

10. During this period, the mother became pregnant with her second child, M, who, as I have indicated, was born in November 2012.

11. Around that time, the mother had taken up living in her father's accommodation (that is the mother's father's accommodation), but in January 2013 he indicated that he could no longer provide a home for her.  It was the exit from this final accommodation that led the local authority to issue care proceedings, which they did on 31 January 2013.

12. The basis of the application was well established on the material that the social services had gathered over the course of their involvement during the preceding two years.  In particular, in February 2012 (and that is a year before the care proceedings were issued), a parenting assessment was undertaken of the mother, which identified no less than 15 separate factors in the case which gave cause for concern.  Those, to my eyes, are particularly important in looking at the outcome of the case that the judge came to consider a year or more later:

"6.  The local authority have completed two parenting assessments of [the mother] ... in March 2012 and an addendum parenting assessment after [M] was born, which was completed in May 2013.  The concerns highlighted in March 2012 are those highlighted in the children's guardian at the outset of these proceedings.  I refer to her position statement ...  This was in the initial analysis and recommendation by the CAFCASS officer and she lists at paragraph 15 the risks to [A] and [M] arising from the following factors:

(1) the youth and immaturity of [the mother] and [the father];
 
(2) the volatility in this relationship, which has led to domestic violence and [the father's] sentence on 19 December 2012 to a two year restraining order;
 
(3) unresolved issues in the parents' relationship, it being unclear if they wished to continue that relationship at that time;
 
(4) lack of information regarding [the father's] current use of cannabis;
 
(5) the volatile relationship between [the mother] and each of her parents;
 
(6) the extent to which ... the maternal grandmother continues to have contact with [A] and [M] when her two younger daughters are subject to ongoing care proceedings;
 
(7) difficulties experienced by all professionals in contacting [the mother], which creates concerns regarding the whereabouts of the children, and [the mother's] honesty and co operation with the child protection plan;
 
(8) [the mother's] certainty that she is right in matters regarding her children;
 
(9) [the mother's] reluctance to act upon the advice of professional staff in relation to childcare issues;
 
(10) the view of professional staff that [the mother] needs support and advice;
 
(11) [the mother's] wish to live independently of professional involvement;
 
(12) [the mother's] inability to live alone to the date of the assessment;
 
(13) [the mother's] transient lifestyle moving between her relatives and various addresses provided by welfare organisations;
 
(14) [the mother's] lack of positive role models of parenting in her own family of origin; and
 
(15) the factors said to combine to create an unstable lifestyle for the children."

13. The threshold criteria relied upon by the local authority at the start of the proceedings alleged instances where the mother had been neglectful of the care of the two children, occasions when she had failed to engage with offers of support, advice and help proffered to her by the local authority, occasions where the mother had been the victim of domestic violence from the father, and had thereby exposed the children to risk, and also examples of the mother failing to prioritise the needs of the children and thereby make sure that their emotional well being was met.

14. Very largely, the mother, and indeed the father, accepted the thrust of the threshold document, and the judge in due time came to find the threshold criteria in section 31 of the Children Act 1989 established.

15. Fortunately for the children, and fortunately for the mother, an element of stability was for the first time introduced into her life by the commencement of the care proceedings and, more particularly, by the fact that her great grandmother, AK, stepped up to the plate and offered her own home as a base, certainly for the time being, for the mother to live with the two children.

16. There was a preliminary assessment.  AK was considered to be suitable to undertake the proposed arrangement and a working agreement was signed by the parties shortly after the court made the first of a series of interim care orders on 14 February 2013.  The working agreement is of some importance in the case, and I propose to quote from it at this stage.

17. The basis of the agreement was that under the interim care order AK would be designated as a local authority foster carer, and therefore it was AK who was to be responsible to the local authority for the discharge of the parental responsibility that the authority had under the interim care order.  But, plainly, the children's mother was to be living with the children in AK's house.

18. Under the heading "Purpose of agreement" the following text appears:

"[AK] will be a carer for [M] and [A]."

19. Later, under the heading "Social Care's Expectations of [mother] and [AK]", the following appears:

"(1) [AK] in her role under fostering regulations will ultimately have the responsibility for all the welfare decisions for [M] and [A].
 
(2) If [the mother] is to attend college then there is an expectation that [AK] will accompany [the mother] and the children to their nursery and to collect them at the end of the day.
 
(3) [AK] will be expected to supervise all contact between [the mother] and the children and [the mother] will not be able to take [M] or [A] out without the supervision of [AK].
 
(4) There is an expectation that [AK] will carry out all caring tasks for [M] and [A]."

20. In addition to that structure, further respite and support were offered to the mother in two ways.  First of all, A was attending nursery school for most of the middle of the day on four days a week.  In addition, she was going to the paternal grandparents for each Wednesday and staying overnight with them for two nights each weekend, and so during the course of each period of seven days the paternal grandparents had the children with them for three days and two nights.

21. The arrangement was kept under review and there are a number of positives that are identified with respect to the care that was being given to the children in that environment by the two adults, the great grandmother and the mother.  It was a settled period in the children's life and there was no criticism of the practical care that was being offered.

22. Matters moved on.  The offers of assistance to the mother that had been made over time had all been rebuffed.  Before the judge she accepted that that was the case, indicating that as a young woman she did not really welcome advice from adults and would rather be getting on with simply enjoying life as a 16 , 17  or 18 year old girl.

23. However, matters changed.  The change took place at an early hearing in the county court on 18 April 2013.  From that stage the mother did accept that she would benefit from various courses being offered to her to assist her to understand just what is involved in being a parent of young children and how she might adapt her behaviour in order to meet the needs of her children more effectively.  So part of the case being presented by the mother before the judge was that, whatever had been her position in the past, now, in the period from April until the hearing in October, she had changed and was now engaging in the process.

24. A further factor, and it was a controversial factor in the case, was that the mother asserted that during that key period, living with AK, it was she, the mother, who was providing the primary care to the children, with AK taking a back seat.

25. The judge heard evidence over the course of three days and then reserved her judgment, giving an oral reserved judgment on 25 October.

26. It is helpful at this stage to summarise the approach taken by the judge.  In doing so, I would record the fact that the judge adopts a conventional structure and in doing so, to my mind, covers the basic grounds and elements that any judge would need to consider when making an important decision of this nature with respect to young children.

27. Having summarised the history and the oral evidence that she had heard, together with the acceptance that was given by the parents to the threshold criteria, the judge summarised the option being put forward by the mother and the great grandmother in this way at paragraph 14:

"What is proposed is a shared care arrangement by [the mother] and [AK].  In other words, a fundamental change is contemplated by [the mother].  [AK] has indicated that she could not care for the children without [the mother's] help.  She could not do the running around.  She wants [the mother] to be able to take the children out on her own, to leave [AK] in the house whilst she goes out perhaps shopping with the children.  [The mother] herself contemplates that this will remain in place for a period of some six to 12 months whilst she completes the courses and perhaps goes back to college.  It is right of course that [A] and [M] are settled and content with the current arrangements, but there are some contraindications to continuing with the current placement."

28. When considering that option, the judge rehearses what she had heard about AK and, unfortunately, part of that picture was to record the fact that AK is not in the best of health.  She suffers from osteoarthritis, has ischaemic heart disease, has raised cholesterol and is a non insulin dependent diabetic.  She has mellitus and a mild hearing loss.  She is taking a significant range of medications.

29. In relation to what role, respectively, the mother and AK were taking in the care of the children, the judge summarised the matters at paragraph 16 of her judgment:

"For the reason set out in the assessment, [AK] was only approved as a foster carer until January 2014.  It was said by the assessor [Kate Wright] that [AK] has provided all the hands on care and that [AK] was taking a back seat with regard to the care of the children.  This was disputed evidence, but I am satisfied that this is a consistent view of the professionals visiting the home over a number of months.  They have no reason to mislead the court or indeed to report other than how they observe it.  It accords with the terms of the written agreement in that [AK] is to have the overall responsibility for the children.  Undoubtedly [the mother] helps where she can and is becoming more confident, but I am satisfied that it is [AK] who plans, makes the decisions and takes the lead.  It is for this reason that the children present as contented and happy as they do.  It has also demonstrably taken its physical toll on [AK].  [The mother's] explanation for the professionals attending at the property saying that [AK] is the primary carer is that she had not been observed caring by professionals, because when they visited she was not there.  That is not a satisfactory explanation in my finding for someone who claims to be the primary carer for children.  If she was indeed the primary carer as she claims then she would have been there when the professionals visited."

30. An important element in the judge's assessment of matters was the evidence of the social worker, upon whom the judge relied, partly in support of the conclusion to which the social worker came, which was to favour special guardianship but also to rely upon the social worker's professional analysis of the respective roles of the two carers in the household.

31. But in particular, the judge places substantial weight on the analysis of the guardian in the proceedings.  She summarises the guardian's involvement and, in particular, reports two recent developments that occurred in the case during the period between (I think) the third and fourth day of the hearings, there being a gap measured in a week or so between the two.

32. The first development was that in her oral evidence the mother had said that she had attended "nine out of ten" of the sessions of a particular parenting course upon which she had been sent.  However, enquiries made by the guardian of the course providers showed that the mother in fact had only attended five out of the ten sessions, and had attended late for some of those that she did make.

33. In addition, on 2 October the guardian had made an unannounced home visit and found that at 11 o'clock in the morning the mother and the children had only just got up, indicating that they had risen that late because there was no a medical appointment that day and the need to get up earlier was not present.

34. The guardian's key recommendation and analysis is summarised by the judge at paragraph 23 in the following terms:

"In her oral evidence, Ms Dawe reflected that it is not clear that [the mother] had made significant changes to her lifestyle and she said she still lacked insight and has historically made statements of a willingness to change, but has not followed this up.  This has not always been implemented in the way that she knows is required.  Ms Dawe agreed the children are not out of control at the present time and the position is broadly positive at the moment, but in the view of the guardian the position is heavily reliant on the respite support offered from [the father's parents], who have both children, and all day Wednesday and from Friday to Sunday."

35. This is a guardian, who is extremely experienced in these matters, and, as I have indicated, the judge relied upon her assessment and her analysis in support of her own judicial analysis of all of the evidence.

36. Having summarised the evidence, obviously in more detail than I have recorded, the judge went on from paragraph 27 onwards to apply the structure of the welfare checklist in section 1(3) of the Children Act 1989 to the facts of this case.  In so doing, she stated this at the beginning of that exercise:

"There are undoubted advantages in maintaining the bond and affection with their mother, but the overriding need for children of this age is for a secure and stable home."

37. The judge then describes the progress that the mother has or has not made and the timescales for change, which she indicates are to be measured going forward from the hearing date with work still to be done.  In particular, the judge quotes AK as saying that the mother's ability to provide "emotional parenting" is "still a long way from 100 per cent", the judge offering that "this no doubt [was] a result of a lack of love in her own upbringing."

38. The judge records the positive reports of how the children have been presented during this period, but her conclusion is that that is the work of AK.  The judge says this:

"In my finding it is [AK] who has got the children into a good routine and it is [AK] who is extremely proactive and supportive in protecting the children and meeting their needs."

39. Moving on, the judge deals with the potential for harm to the children.  In doing so, she identifies the period of relative and clear calm that has existed in the mother's life with none of the overt symptoms of upset and exposure to relationships which may be emotionally and/or physically dangerous to them having been recorded in the year or more prior to the hearing date.  But the judge considers that if the children were in the care of the mother alone, there was a potential for those matters to re emerge.

40. The judge also notes that it is at the core of the mother's case for a shared arrangement that the mother is:

"... not yet ready for the sole care of her children, because she herself would be dependent on [AK] for support."

41. The judge contrasts that option with placement with the paternal grandparents which she characterises as:

"A move into their care is therefore not a change in circumstances, but a continuum."

42. Finally, the judge, with some reference to recent Court of Appeal decisions in this area, accepts that the level of intervention being contemplated (namely the removal of these children from their mother's care and placing them within the relatively secure confines of a special guardianship order) was a level of intervention which justified the court analysing the necessity for the process, undertaking a proportionality assessment of the issues in the case and weighing the positives and the negatives of each option.

43. Mr Vine, for the mother, in presenting her application to this court, accepts that the judge described the approach to be taken in law correctly.  His criticism is that she did not apply those strictures to the exercise which she went on to conduct.

44. In describing her approach to that exercise and the outcome of it, the judge set out her approach at paragraphs 35, 36 and 37 of the judgment:

"35.  The time has come to make long term decisions for the children.  The current arrangement was a holding, interim position to safeguard the children until final decisions could be made.  It is shored up by a huge commitment by [AK] to care for her granddaughter and great grandchildren selflessly and in the face of considerable other domestic pressures.  Her own mother is unwell and has been in hospital and she is also the central support for her own children, now adult, who have their own problems.  The situation is managed on a short term basis by a very extensive external support.  [A] goes to nursery four days a week and spends the other three in the care of [the father's parents].  [The father's parents] have both children each weekend and on a Wednesday.  This arrangement cannot continue indefinitely, because the children need to have a settled home base.  [A] has been confused by the disruptive pattern to her life.

"36.  The alternative would be to reduce the time spent with [the father's parents] and for the children to have their home base with their mother and maternal great grandmother.  This would put extra strain on [AK], who would not have the regular respite and has expressed a view that she would get her breaks if [the mother] could take the children out on her own for short periods.  In reality [the mother] has been able to live the life of a young, single woman at weekends, showing up at her friends, and also has been able to ask [AK] to have [M] at other times.  This would have to change.  [The mother] has not been able to make the necessary preparations to her property for this to be available as a home for herself and her children.  She is still hoping to return to college.

"37.  I am satisfied that the proposals put forward by mother are untested and there must therefore be uncertainty for the children.  What is proposed is a shared arrangement whereas the children now need to have the benefit of security of a family home.  The special guardianship order is the only alternative which will offer the children the guarantee of a stable home life in a settled and secure home.  It is an environment that is very familiar to the children and that they are comfortable in.  There is no question that the [father's parents] can offer the children better than good enough parenting, which they have done consistently throughout the children's lives."

45. The judge goes on to refer to other factors in the case and, at paragraph 40, expressly says that she has been greatly assisted by the careful analysis of the guardian and the balanced and fair analysis of the social worker.

46. The judge finally concludes by indicating that the only order that will guarantee a stable home life in a settled and secure home for these children now is the special guardianship order, and that is the order that she went on to make.

47. So far as contact is concerned, at paragraph 40 the judge stated this:

"Contact should include overnight contact provided there is suitable accommodation for the children and will not disrupt their routines and should take place at the home of the maternal great grandmother for the foreseeable future.  There should be additional visiting contact around special occasions and birthdays and should include teatime contact when the children start school."

48. Once the father is free to do so, he is to be given one visit with the children each week, to be confined to his parents' home and to be supervised by them.

49. The notice of appeal was issued promptly on 13 November.  Given that the judge's order provided for the effective immediate move of the children to the home of the paternal grandparents, an application for a stay of that part of the order was made.  The papers were placed before me on that day.  I granted a stay of the order pending the outcome of the appeal process, but I adjourned the application for permission to appeal so that it could be reconsidered at a short oral hearing once an approved transcript of the judge's judgment had been obtained.

50. That process was undertaken before Hallett LJ on 5 February 2014.  Following submissions by Mr Vine, her Ladyship was persuaded to set the matter down for a full oral permission hearing, with the appeal to follow, with a one day time estimate.  That is the hearing that my Lady, my Lord and I have undertaken this morning.

51. The grounds of appeal that Mr Vine seeks to put before the court are six in number.

52. First, he seeks to launch an attack on the judge's finding that it is AK who was the primary carer of the children from February 2013 onwards.

53. Secondly, he submits that the judge failed to weigh the emotional impact on the children of being separated from the care of their mother in the making of the special guardianship order and in the very reduced level of contact that would thereby follow.

54. Thirdly, he submits that the special guardianship order was not justified on the ordinary basis of applying section 1 of the Children Act and considering the children's welfare as the paramount consideration.

55. Fourthly, he makes a similar submission, to the effect that making a special guardianship order was not proportionate to the need to protect the children.

56. Fifthly, he submits that the judge failed to undertake a good enough balancing exercise, taking an holistic view of the evidence and weighing the factors for and against each of the options side by side.

57. Sixthly, and separately, he submits that if the special guardianship order is to stand then the judge's disposition as to contact is woefully insufficient and so far from what would be required for the children's welfare as to justify this court intervening and replacing it with a different order.

58. The focus of the submissions as they are now put, both in the revised skeleton argument and orally before us today, is upon the judge's finding that AK was the primary carer.  It is understandable that that should be the focus, because if that finding stands then the proportionality exercise and the exercise of considering the children's welfare has to be determined in the light of that finding.

59. In making good his submissions to us, Mr Vine makes a number of points firmly and clearly.  His overall submission is that the judge closed her eyes, or failed to have any proper regard, to clear aspects of the evidence which indicated that it was the mother who was the primary carer and not AK.

60. The first point he refers to is that the mother had been the carer of the children for 19 months before they even moved to AK's house.  Of course, as a matter of bold assertion that is correct, in the sense that the children, first of all A and then, when he came to be born, M, were with their mother in her peripatetic movements around the family and in and out of supported accommodation, and no one else was the primary carer in that period.  But the issue for the judge was not to look at that period but to see what role, post placement with AK, AK and the mother had undertaken.

61. Secondly, Mr Vine refers to the written agreement, to which I have already made reference.  In particular, he quotes from paragraph 4 of the relevant section, where it states that there is an expectation that the mother will carry out all caring tasks for M and A.

62. I see the point that is being made.  Mr Vine rightly, for his part, does not plead this as a legal submission.  This was not a legal agreement in that sense.  It has evidential value, as indicating what was or was not in the minds of those involved before they started and embarked upon this endeavour.

63. But even if one approaches it on that basis, one has to look at the other paragraphs in that section of the document and keep a clear eye on the responsibility of the two adults in the placement and, from that perspective, it is plain that the ultimate responsibility was with AK.  She was the foster carer and the agreement provides that the mother is not to be alone and have any unsupervised time with the children at all.

64. So the point is made, but in my view it does not go very far in assisting a court (this judge and now we sitting here at appellate level) in determining what happened after the ink dried on that agreement.

65. Of more importance and of more weight are, obviously, the various elements of the evidence the judge had from professionals and from AK and the mother as to what had happened on the ground in those ensuing months.

66. The support worker, who had visited the mother for a period of six months from October 2012, reported week in, week out, that the children were doing well in the care of the mother.  Mr Vine says that, so far as it goes, that shows that they were in the care of the mother.  But, again, that period only overlaps with the time with AK to a limited degree, and is no more than a record of the fact that the children were with their mother and obviously importantly seen to be doing well when the support worker saw them.

67. Of more importance is what the two individuals said, first of all, in their witness statements.  The mother at pages C447 and C448 of the bundle describes the arrangement with AK and says this:

"The children are happy and settled and I believe well cared for by me."

And it is the word "me" upon which Mr Vine lays stress.

68. In her own witness statement at page C458 of the bundle, AK says this:

"It is clear that the children have a very close bond with [mother] ...  When [mother] has been away from the property attending courses recently, [A] continuously asks where her mum is and when she will be home.  If the children are tired or upset they will ask for [their mother].
 
[Their mother] is doing so well with caring for the children.  [M] is currently teething and [A] copes with this well.  [Mother] does all the caring for the children and I just take a back seat and am there to support and assist if [mother] requires me."

69. There is then evidence from the social worker who conducted a "connected person" assessment of AK with a view to seeing whether she, AK, could be a sole carer for the two children at the conclusion of the proceedings.  In part of that assessment the worker (at internal page 34 of that report) describes AK as reporting "a considerable change to her life, both physically and emotionally" in having the children with her.  Then this:

"Although [mother] has been completing most of the childcare for the children, [AK] has accepted that she will not be able to manage the care of the children on a permanent basis."

70. Mr Vine says that the implication from that is that AK was reporting and the worker was accepting that it was the mother who was providing the lion's share of the care.

71. But there are difficulties with that worker's evidence.  Her name is Kate Wright.  The difficulties arise in the judge's summary at paragraph 16, which I have already set out in this judgment.  There the judge records Ms Wright as saying that the great grandmother, AK:

"... has provided all the hands on care and that [the mother] was taking a back seat with regard to the care of the children."

72. Mr Vine accepts that in her oral evidence Ms Wright did, in the course of cross examination from the guardian and evidence in chief from the local authority, give that evidence, but he reports that he obtained more favourable answers from her when he was cross examining on behalf of the mother.

73. In addition, it is accepted by Mr Vine that the social worker's evidence was plainly to the effect that when visits were made the evidence to the social worker's eyes were that the grandmother was providing the care.

74. It is well known that an appellant who seeks to challenges primary findings of fact made by judges at first instance faces a considerable hurdle at appellate level.  In making that observation I am not doing anything more than recording the difficulties that the appeal court has in understanding the wealth of detail that a trial judge has, not just in the detailed words that are used in the documents and in what is said during the course of a hearing, but also in the demeanour of the witnesses and the manner in which those words are delivered.

75. In the present case, we are at a considerable further disadvantage, in that the judge plainly came to the conclusions recorded in paragraph 16 at the end of three or four days of oral evidence, where this very topic was a prominent issue between the parties in the case because of the potential impact it has on the outcome, and we have the judge's conclusion at the end of the process.  However, we do not have a note of evidence of any of these witnesses when they gave oral evidence on this key point, nor yet do we have a transcript of evidence.  It simply has not been a feature of the preparation for this appeal.

76. So, for my part, it is simply not possible to contemplate this court overturning the judge's conclusion as to who, as between AK and the mother, was the primary carer.

77. I go further.  I am afraid I am unimpressed by the various points that Mr Vine seeks to make.  They either are irrelevant (the 19 months prior to February or the terms of the written agreement) or they are really so vague and shallow as to be of no great importance.  The mother's statement in a short line in the sentence that it is "me" who is the carer really takes matters little distance evidentially.

78. So I consider that there is no prospect of a successful appeal in relation to the first primary ground, namely the challenge to the finding of AK being the primary carer.

79. Moving on to the rest of the case in relation to the special guardianship order, all of the points in the following four grounds of appeal that Mr Vine seeks to make are properly made as separate elements, but they are all facets of the same global analysis that the judge had to make.

80. In arguing for permission to appeal, and then obviously for a successful appeal if permission were granted, Mr Vine stresses the positives.  He submits that the evidence is that the mother is at least, to use the jargon, a "good enough" parent; that the arrangement with the great grandmother was working and was a functioning status quo arrangement for the children; that removal of the children from that arrangement, which they had become used to and a removal in such a way as to reduce radically the amount of time they have with their mother, is potentially harmful to them, and goes to indicate that such a move is out of proportion to the need to protect them from whatever harm may be thought to be likely to befall them were they to remain in the mother's care.  Then he also makes the submissions I have indicated about the failure of the judge to engage in the exercise.

81. Against those submissions, it is necessary, in my view, to step back and look at the case as a whole, not just as the judge sought to do, in what I consider is a carefully crafted judgment in which the relevant points are all drawn in.  But coming to this case afresh and looking at it as a fresh pair of judicial eyes in order to make sure that the order in relation to this mother and these children is not wrong and does not fall to be set aside, I too have undertaken the exercise.  When one looks at the real case, in my view the arguments about the proportionality and the criticisms of the judge's approach fall away.

82. Prominently, in any consideration of the real case that the judge had to consider, are the 15 very significant factors that were listed as long ago as February 2012.  That is the baseline upon which, sadly, this mother's care has to be evaluated.  I say "sadly" because I take as a given that for a young person to be in the position that this mother was in at her age will be to a very large extent a manifestation of the working out by her of the experiences that she seems to have had in her own childhood not so very long before.

83. In addition, looking at the bigger picture in the case, one sees the judge's conclusion at paragraph 34 that there is little confidence that the mother will stick to attendance at courses and moving matters on.  The judge was entitled to come to that view based upon the mother's track record, both prior to the apparent change in approach on 18 April 2013 and, given the report of her poor attendance at the course since then, her track record thereafter.

84. Also part of the bigger picture in the case is that, for the time being, the mother was proposing to stay with AK, but the mother has other accommodation available to her and the proposal was for a shared residence order, with the two, AK and the mother, developing a way of caring for the children which in time would see the mother standing more and more on her own two feet.

85. To my mind, that is a detriment when one is looking at the future for these children.  At the moment they are in a shared care arrangement, which involves the care being shared by AK, the mother and the paternal grandparents.  To contemplate a further period without any end date during which AK and the mother will share, but maybe split between two houses, the care of the children is the contrary of a stable and secure home, which the judge concluded was the primary need of these children.

86. A third factor is whether or not this is in fact a change or part of the status quo.  It is striking that the argument put by Mr Vine for the mother is that he was arguing for a status quo to be maintained, the current arrangement, whereas the judge at paragraph 14 of the judgment describes what is proposed as "a fundamental change".

87. The reason for the different labels being attached and the striking difference between them is that the judge was contemplating precisely the slow development of the shared care arrangement, with the children sliding bit by bit, month by month, from the current arrangement into some untested and untried regime, with the mother living separately, either entirely or for some period of the time, and the children spending time as between the home of AK and the mother as the two with parental responsibility, AK and the mother, might determine.

88. In my view, the judge was right to consider that that was a fundamental change and it is wrong simply    looking forward six months, a year, two years    to describe what was being put forward on the mother's behalf as simply the status quo.

89. There were also significant concerns about AK being able to play a substantial role looking forward.  There were her unfortunate complications, in terms of her physical health.  There was the knowledge that came late in the development of the case that one of AK's sons, P, had a significant police record with respect to domestic violence in relation to two of his former partners.

90. In addition, there was the advice of the experienced children's guardian that, on the basis of the health information and the knowledge of P's visiting of AK's home, the guardian did not expect AK to be approved as a long term carer when matters were reviewed in January 2014.

91. Pausing there, no party was suggesting that there should be a full care order and so AK would not need to be formally recognised as a local authority foster carer after the conclusion of the final hearing.  However, the fact that she would not qualify for approval or might well not qualify for approval goes to underline that it was not a given that AK could continue to provide the level of support that she had been providing.

92. Those factors that I have summarised seem to me to be well established in the evidence and, indeed, arise from certain conclusions that the judge made.  It was against that landscape that the judge had to make the all important decision about the children's future welfare.

93. Mr Vine accepts that it is not necessary for a judge to record every submission that is made or to lay out the proportionality analysis to a nicety.  It is enough if the substance of the judge's approach can be discerned from the words that she uses.

94. To my mind, the judgment is justifying of greater positive description than that.  To my mind, the judge does engage with all of the key factors in the case.  She gives priority to the need now to find a stable and secure home for these children.  Mr Vine submits that there was time, given that nobody was suggesting that the children should be removed from the family, to allow the mother to try to test the "untried and untested" regime that she was proposing, time for her to show that she could engage with courses, and time for her to show, if it was in doubt, that she could be the primary carer of the children.

95. Whilst that submission is obviously a submission that is to be made on behalf of the mother in these proceedings, part of the real case that the judge had to assess was to consider the amount of time that had already gone by.  That time was the entirety of A's life.  The judge was hearing the case in October 2013.  A was born in February 2011.  The judge considered that there was no further time that could be given.  The mother had had a great deal of advice and professional input throughout that period of time.  Sadly, she had not felt able to engage in it until comparatively recently.

96. The arrangements for the children that had been in place were better than they had been.  They were much less prone to irrational, haphazard and short notice change following the making of the interim care order.  However, they cannot have been described as ideal, living most of the time in the shared care of AK and the mother, but spending three days and two nights a week with the paternal grandparents.

97. The judge cannot be criticised, in my view, for giving the greatest priority to the need to find a secure and stable home for the children now.  If that is the yardstick, really the only candidate for delivery of what was required was placement with the paternal grandparents under a special guardianship order.

98. So in relation to the special guardianship order and the challenge that Mr Vine seeks to make, I am afraid that the application has no reasonable prospect of success if permission to appeal were given.  For my part, I would refuse permission to appeal in relation to that.

99. Finally, with respect to contact, the reduction in contact is very substantial.  I have described it.  Mr Vine sought to draw a contrast between what is offered to the father (once a week) and what is the default position for the mother, overnight at least once a month with some other visiting contact.

100. The Court of Appeal is unlikely to engage in fine tuning contact arrangements unless it is plain that the judge has made fundamental error in approaching her analysis of the relevant issues.  I can detect no such error.  The judge is establishing by this order a regime for the children which is to go forward for the foreseeable future, for the rest of their childhood.  The question of contact is not, however, set in stone.  It can be a matter for review.

101. There is often good reason, following a change from care in one home to living another home, to reduce the level of contact for a period.  There is often good reason, where a mother's equilibrium is not to be necessarily relied upon at a challenging emotional time for her, to limit the contact.  But that is not to say that it cannot be subject to review once matter settle down, and it is certainly not to say it cannot be the subject of review if this mother is able to carry on maturing, as she has indicated she is able to do in recent times.

102. If there is a problem with the wording of the order, for example "visiting contact after school" and yet, because of their ages, these children will not be starting school for some considerable time, then that fine tuning is a matter that could have been raised with the judge when the order was made and certainly now could be raised back with the first instance court to revisit that issue if it is justified.

103. But in terms of this court becoming involved in considering that issue alone on appeal, I am afraid there is no reasonable prospect of success in that regard on its own.

104. So for all of those various reasons, realising, as I do, the blow that this outcome will be to this mother, I have no hesitation but to announce my decision, which is to refuse permission to appeal.

105. LORD JUSTICE McCOMBE:  I agree that the application for permission to appeal should be refused for the reasons given by Lord Justice McFarlane, and I have nothing that I wish to add.

106. LADY JUSTICE ARDEN:  I also agree.

ORDER:  Permission to appeal refused.
(Order not part of approved judgment)