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Home > Judgments > 2009 archive

R (A Child) [2009] EWCA Civ 358

Application by mother for permission to appeal, with appeal to follow, an order awarding residence of her son to the paternal grandparents. Appeal allowed.

The parents had met in 1999 in South Africa and married in 2002 but that soon broke down and they divorced in 2003. The child was born before then and had lived with the mother except for a period of three months when he stayed with the paternal grandparents. In 2005 the father initiated contact and residence proceedings but the parties were, in the words of the guardian, “implacably hostile”. An expert witness report on the child stated that he was being damaged by the battle but the expert opposed a shared residence order but saw no particular benefit in giving the father care: instead he thought independent foster care should be considered. The guardian differed from the witness in arguing for placement with the grandparents and the trial judge agreed.

In this hearing, counsel for the mother argued several points relating, among other issues, to the judge’s failure to give due weight to existing relationships, the contribution of the biological parent or pursuing family therapy. Therefore the judge was plainly wrong. Wall LJ agreed and allowed the appeal for two principal reasons: i) the judge had not “grappled with the fundamental proposition that children have a right to be brought up by their natural parents unless their welfare positively demands the replacement of that right.”; and ii) there was a flaw in his reasoning in that he had accepted the expert witness evidence for independent foster care but placed the child with the grandparents who are patently not independent.  In a postscript Wall LJ comments on the damage caused by such protracted litigation by citing the famous line from Philip Larkin’s “This be the verse”.

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Neutral Citation Number: [2009] EWCA Civ 358
Case No: B4/2009/0594
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
on  12 March 2009 in the Luton County Court by
His Honour Judge Everall QC.

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 29/04/2009
Before :

LORD JUSTICE WALL
LORD JUSTICE WILSON

- - - - - - - - - - - - - - - - - - - - -
Between :

CP (The Mother)  (Appellant)

 - and - 

AR (The Father)  (1st Respondent)

and

CR (The Child – by his guardian)  (2nd Respondent) 
  
R ( A Child) 
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Miss Faggionato (instructed by Purcell - Solicitors) for the Appellant
The 1st Respondent appeared in person
Miss Kang (instructed by Pictons – Solicitors) for the 2nd Respondent- by his Guardian

Hearing date: 7th April 2009
- - - - - - - - - - - - - - - - - - - - -
Judgment
 
Lord Justice Wall:
The appeal
1. The mother of a boy whom I will call CR seeks permission to appeal against an order made on 12 March 2009 in the Luton County Court by His Honour Judge Everall QC.  The principal thrust of the mother’s challenge is to a residence order which the judge made in favour of CR’s paternal grandparents.  The judge made a number of ancillary orders.  It is, however, clear to my mind that they all stem from the residence order, and if that order falls, the whole of the judge’s order requires to be reviewed. I will, accordingly, concentrate in this judgment on the residence order which the judge made.

2. CR was born in March 2000, and is thus now 9. At the date of the judge’s order, when he was still 8, he was living with his mother. She sought an immediate stay of the judge’s order, and permission to appeal. The judge refused permission to appeal, but granted a temporary stay of his order for seven days.  That stay was extended by my Lord, Wilson LJ, who considered the mother’s application for permission to appeal on paper on 23 March 2009. He directed that the application for permission to appeal should be listed for hearing before a two judge court on 7 April 2009, with the appeal to follow if permission was granted, and that the stay should continue until the determination of the application by this court.

3. At the outset of the hearing on 7 April 2009 the court invited submissions from the parties on the basis that permission to appeal would be granted. At the conclusion of the argument on 7 April 2009, we announced that permission to appeal would be granted; that the appeal would be allowed; and that the judge’s order would be set aside. We also told the parties that we required further time to consider what order should replace that made by the judge;  that we would communicate the terms of that order by Email on 8 April; and that our reasons for our decision would be communicated later in writing. This judgment thus sets out my reasons for reaching the conclusions set out in the order which we Emailed to the parties on 8 April, and which was (in its anonymised form) in the following terms: -


IT IS ORDERED THAT:-

1. There be permission to the mother to appeal against the orders made by HH Judge Everall QC sitting in the Luton County Court on 12 March 2009 other than those referable to the medical treatment of CR.

2. The appeal be allowed. Paragraphs A, D, and H to K of the recital to the principal order made by the judge together with paragraphs 1 to 9, 12 to 15, and 17 of the order are hereby set aside, and the words ‘and the paternal grandparents’ be removed from recital G.

3. The guardian’s application for an order under section 37 of the Children Act 1989 addressed to the local authority is refused.

4. There be an interim residence order in favour of the mother with contact to the father in accordance with the order of district judge Ayres dated 13 June 2007.

5. Subject to the availability of Professor Zeitlin on 19 June 2009 there be a further hearing before Judge Everall QC in the Luton County Court on that day (19 June 2009) with a provisional time estimate of one day.

6. A copy of the judgment of HH Judge Everall QC delivered on 12 March 2009 and as approved by the judge be made available forthwith to Professor Zeitlin.

7. A copy of this court’s judgments setting out its reasons for allowing the mother’s appeal is to be made available to Professor Zeitlin and to the general medical practitioners of the mother, the father and the child forthwith upon them being handed down.

8. In the light of this court’s judgments (and in particular its rejection of the proposals that, at this stage, it was in the interests of the child to reside either with foster carers or with his paternal grandparents) Professor Zeitlin is invited to report to the court in writing not later than  5 June 2009 on the following facts and matters:

(i) his current assessment of the mental state of the child, the mother and the father;

(ii) in the event that the child continues to reside with the mother with contact to the father (or in the event of the court – whether by consent or otherwise - making a shared residence order) the therapeutic intervention (if any) required to be undertaken by the mother the father and the child in order to minimise the future risk of harm to CR from the interaction of his parents;

(iii) such other facts and matters as appear to Professor Zeitlin to be relevant to the future management of the case in the light of this court’s judgments.

9. Professor Zeitlin to be at liberty to see CR for the purposes of the report identified in paragraph 8 above and to discuss with the general practitioners referred to in paragraph  7 above any proposed referrals for therapy.

10. The letter of instruction to Professor Zeitlin to be despatched by the solicitors acting for the guardian (as lead solicitors) within 7 days of the receipt of this court’s judgments.

11. Subject to his availability on that day, Professor Zeitlin do attend the hearing identified in paragraph 5 above for the purpose of giving oral evidence unless it be agreed between the parties in writing not less than 7 days before the date fixed for the hearing that his attendance is not required.

12. Professor Zeitlin’s fees for the report identified in paragraph 8 above and his attendance at the hearing identified in paragraph 5 above be shared equally between the mother the father and the guardian and shall be a proper disbursement on the public funding certificates of those in receipt of public funding.

13. The parents and the guardian shall file evidence (the latter by way of a further report) as to the services (if any) available locally on the National Health Service to facilitate any therapy advised by Professor Zeitlin no later than 12 June 2009. Such evidence should include the means whereby it can be accessed, its duration and the length of any waiting lists for such treatment.

14. Liberty to apply to Judge Everall QC on short notice for further directions in the event that Professor Zeitlin is unable for any reason to undertake the work identified in paragraph 8 above.

15. The Family Assistance Order made in favour of the paternal grandparents be discharged.

16. There be no order as to the costs of the appeal save for detailed public funding assessments of those parties in receipt of public funding.  

4. As the case is not finally closed, we imposed reporting restrictions. With the exceptions, therefore, of the name and location of the judge and the court, the names of counsel and  their instructing solicitors, and the name of  Professor Zeitlin, this judgment is written anonymously, and nothing must be published which identifies the child either by his name or by his whereabouts.

Preliminary observations: my approach to this appeal
5. Before setting out the facts, I need to make a number of preliminary observations. The first is that I have considerable sympathy for the judge.  In order to help the parties, who were very anxious to know the result, he gave an extempore judgment late in the afternoon of the fourth day of what, on any view, had been a fraught, contested hearing in what is, again  on any view, a difficult case. As he himself put it, this means that the judgment was not as “polished” as he would have wished it to be. I have no doubt that this is the case, and am very conscious of the fact that this court has had the luxury of time to consider its reasons.

6. Secondly, I am the first to acknowledge that the judge is an experienced, sensitive and humane family lawyer, and one whose decisions command respect. Furthermore, as was pointed out to us, he knew the case well. He was, moreover, exercising the wide discretion afforded to judges hearing private law applications under the Children Act 1989 (the 1989 Act). In order to demonstrate that his decision is plainly wrong, therefore, the mother has to show either some error of law on the part of the judge, alternatively that his exercise of discretion is sufficiently flawed so as to entitle this court to intervene.

7. Speaking for myself, I am in no doubt that there is a connection between the two factors identified in paragraphs 5 and 6 above.  Had the judge given himself more time for reflection, a different outcome would, I think, have resulted. He would not, I think,  have made a residence order in favour of the paternal grandparents. In my judgment, shortage of time fully to consider the matter plainly played a substantial role in his decision-making process.

8. I have come to the clear conclusion that a residence order to the paternal grandparents was not an order which it was properly open to the judge to make on the material before him. If necessary, I would be prepared to hold that in reaching that conclusion, the judge erred in law. However, above all I see the judge’s decision as vitiated by the manner in which he conducted the so called “balancing exercise”: - see  G  v G (Minors: Custody Appeal)  [1985] 1 WLR 647. In particular,  it seems to me that the judgment of the President in that case (Sir John Arnold P. sitting in this court but cited with approval in the speech of  Lord Fraser of Tullybelton in the House of Lords at [1985] 1 WLR 647 at 650) is very much in point. Sir John Arnold said: -

I believe that if the court comes to the conclusion, when examining the decision at first instance, that there is so blatant an error in the conclusion that it could only have been reached if the judge below had erred in his method of decision – sometimes called the balancing exercise – then the court is at liberty to interfere; but that, if the observation of the appellate court extends no further than that the decision in terms of the result of the balancing exercise was one with which they might, or do, disagree as a matter of result, then that by itself is not enough, and that falls short of the conclusion, which is essential, that the judge has erred in his method. I cannot think of any case in which this particular issue had to be faced, in which that method of determination is not intellectually satisfactory, logically supportable or consistent with the result of any of the cases in the appellate courts; and I shall approach this case on the footing that what this court should seek to do is to answer the question whether the court discerns a wrongness in the result of so striking a character as to make it a legitimate conclusion that there must have been an error of method – apart, of course, from a disclosed inclusion of irrelevant or exclusion of relevant matters.’

9. I have also, in re-reading G v G (supra) reminded myself of the wise words of Cumming-Bruce LJ in Clarke-Hunt v Newcombe (1982) 4 FLR 482, 486, also cited with approval by Lord Fraser:-

There was not really a right solution; there were two alternative wrong solutions. The problem of the judge was to appreciate the factors pointing in each direction and to decide which of the two bad solutions was the least dangerous, having regard to the long-term interests of the children, and so he decided the matter. Whether I would have decided it the same way if I had been in the position of the trial judge I do not know. I might have taken the same course as the judge and I might not, but I was never in that situation. I am sitting in the Court of Appeal deciding a quite different question: has it been shown that the judge to whom Parliament has confided the exercise of discretion, plainly got the wrong answer? I emphasize the word “Plainly”. In spite of the efforts of [counsel] the answer to that question clearly must be that the judge has not been shown plainly to have got it wrong.

10. G v .G , of course, also repeats and reinforces the famous statement of principle made by Asquith LJ (as he then was) in this court in Bellenden (formerly Satterthwaite) v. Satterthwaite [1948] 1 All ER 343 at 345. In the passage which immediately follows the citation from the judgment of Cumming-Bruce LJ in Clarke-Hunt v Newcombe, Lord Fraser says:-

That passage, with which I respectfully agree, seems to me exactly in line with the conclusion of Sir John Arnold P in the present case, which I have already quoted. The reason for the limited role of the Court of Appeal in custody cases is not that appeals in such cases are subject to any special rules, but that there are often two or more possible decisions, any one of which might reasonably be thought to be the best, and any one of which therefore a judge may make without being held to be wrong. In such cases, therefore, the judge has a discretion and they are cases to which the observations of Asquith LJ, as he then was, in Bellenden (Formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 apply. My attention was called to that case by my noble and learned friend Lord Bridge of Harwich, after the hearing in this appeal. That was an appeal against an order for maintenance payable to a divorced wife. Asquith LJ said, at p. 345:

It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.’

I would only add that, in cases dealing with the custody of children, the desirability of putting an end to litigation, which applies to all classes of case, is particularly strong because the longer legal proceedings last, the more are the children, whose welfare is at stake, likely to be disturbed by the uncertainty.

Nevertheless, there will be some cases in which the Court of Appeal decides that the judge of first instance has come to the wrong conclusion. In such cases it is the duty of the Court of Appeal to substitute its own decision for that of the judge.

11. In my judgment, this is such a case. Moreover, because of its particular facts, it is not a case in which this court can or should order a re-hearing. What it demonstrates, I think, is  that there are cases, albeit that they are  rare, in which; (1)  this court can properly say that the decision of the court below was wrong; and (2) may do so, despite the manifest advantages which an experienced trial judge had, both in seeing and hearing the witnesses and  in exercising the very broad discretion given to judges hearing cases under Part II of the 1989 Act.

12. Before setting out the facts, I would also like to pay tribute to the thoughtfulness and moderation in which the case was argued before us on all sides. We heard counsel for the mother and guardian, and the father in person, assisted by a McKenzie friend. The paternal grandparents were also in court. They did not make submissions, but told us that, whilst they opposed the appeal,  they were prepared to leave the decision to us. 

13. I would like to pay a particular tribute to Miss Marina Faggionato, who appeared for the mother. The judge in his judgment referred to the fact that the mother had the good fortune to be represented by Miss Faggionato. That is a sentiment I echo. Although her skeleton argument is a lengthy document (it runs to some 81 paragraphs) it is, nonetheless concise, and well structured. The maturity and frankness of her presentation belied the recent date of her call to the bar. Her mastery of the documentation and the clarity of her answers to questions from the bench were impressive. I am extremely grateful to her for the substantial assistance she provided.

The background
14. That case has a profoundly dispiriting and complex history which, for the purpose of this appeal, I do not think it necessary to relate in detail. The essential facts, however,  are as follows. The mother is 31. Her ethnic origin is white South African.  She is a Jehovah’s witness, although the question of medical treatment for CR was not – in the event - an issue in the case. The father is 37, and is white British, although his mother is Italian.

15. The mother and the father met in South Africa in 1999, and married in 2002. By that stage, their relationship had already been in difficulties both in England and in South Africa. It appears finally to have broken down before the end of 2002. At all times during their early separations, and after their final separation, CR lived with his mother, although there was a period of some three months in 2000 when the mother and CR lived with the paternal grandparents.

16. CR is the parents’ only child. They were divorced in 2003, and the mother has remarried.  She and her husband have a child, a boy whom I will call C, and who will be four in June 2009.

17. On 17 November 2005, the father began proceedings under the 1989 Act seeking contact and residence together with a number of other orders. However, a glance at the chronology shows that there were proceedings between the parties in 2002 and 2003. There have been numerous hearings since the father instituted his present applications. On 18 October 2007, HH Judge Everall QC, who has had the conduct of the case since  6 September 2007,  appointed a CAFCASS guardian for CR pursuant to rule 9.5 of the Family Proceedings Rules. The guardian filed a preliminary report on 11 March 2008 on the question of interim contact for the father. That report recorded accurately the critical feature of the case, namely that “It would seem that the parties are implacably hostile towards each other”.

Professor Zeitlin’s written report
18. On 17 March 2008, the judge gave leave to the guardian to instruct Professor Harry Zeitlin to report. Unfortunately, there was a delay in the despatch of the letter of instructions, which did not go until 1 July 2008, and Professor Zeitlin’s report was not forthcoming until what looks like 1 January 2009. As a consequence, dates for the final hearing had to be vacated.

19. Professor Zeitlin’s opinion was sought on 10 issues. These included CR’s “current psychiatric state and emotional well-being”; the support or assistance which would be of use to CR “to assist him through any difficulties”; CR’s  attachment to his parents, and the impact of the ongoing dispute on him. Professor Zeitlin’s views were also sought on whether CR should live with his father or his mother, and whether or not there should be a shared residence order. It is to be noted that as this point there was no question of CR living with his paternal grandparents, and this is not a point upon which Professor Zeitlin was initially asked to advise.

20. Professor Zeitlin’s written and oral evidence is critical to the case, and although I propose to present the relevant material in chronological order, I also propose to concentrate upon Professor Zeitlin’s contribution, which  I will set  out in some detail. In my view, had the judge conducted the same exercise, he would not have reached the conclusion he did.

21. To put Professor Zeitlin’s written report into context, however, it is necessary to record that the father wrote to Professor Zeitlin on 30 November 2008. Although there is a page missing from the letter in my bundle, its import is clear enough. The letter is a catalogue of complaints against the mother, and an assertion that  if CR  was to live with his father he would be “sheltered” from damaging incidents and would not be “instructed or manipulated”. The submissions which the father made in this court were to like effect.

22. Professor Zeitlin is, of course, a distinguished child and adolescent psychiatrist, and has been a consultant since 1974. He has a special expertise in the long term outcome for childhood emotional and behavioural disturbance. For the purposes of his report he interviewed the father, the mother and CR. He took a history from both parents and noted: “both parents not only make allegations and counter allegations but also refute vigorously the allegations made by the other”.  Professor Zeitlin made it clear that it was the court’s function, not his, to determine veracity.  He contented himself with saying that “The battle has now continued for some six years”.

23. As to CR, Professor Zeitlin says: -

All the indications are that he has a high probability of being a very vulnerable child. Ongoing therapeutic input is not part of the assessment.

CR did not at interview show any evidence of major psychiatric disorder. However, he was very cautious and showed evidence of anxiety generally but particularly when there was reference to his family. He diverted away from this topic.

It is my opinion that CR’s involvement in the parental battle will have a high risk of progressively increasing CR’s negative and aggressive behaviours, of inducing an increasingly negative self image and of causing him to have relationship difficulties. Consistent with this is an account from school concerning his relationship to others particularly that he can become aggressive and dictatorial towards adults. CR is quite clearly very aware of the parental separation and split and the present situation has a high probability of causing him, in the future, to have difficulties in family relationships particularly.

24. As to the causes of CR’s difficulties, Professor Zeitlin commented that, if the accounts received were correct, CR had been subjected to a long ongoing battle between the parents of which he was very aware. From the papers it was difficult to see that there was a great deal to choose between the parents with regard to providing a safe and unpressurised environment.  The allegations made would be sufficient to indicate emotional and physical abuse, if proven.

25. Professor Zeitlin then makes the following very important statement:-

It is my very strong advice that if the parents do not act now to form a constructive and stable agreement about the future life arrangements for CR then they would both be knowingly causing him harm.

26. Professor Zeitlin then makes the following important point:-

When children are exposed to involvement in parental disputes, then they tend to become rigid and resistant to any intrusion. That would be consistent with his presentation at the assessment interview. It is unlikely that any active, therapeutic intervention at this time would be very effective. It may be that some form of non directive therapy, such as Art Therapy, could enable him to express his feelings, but it is unlikely that any change could be induced in him until there is clear agreement between the parents about the living and contact arrangements, that is stable, has clear structure but sufficient flexibility to avoid what seems to have been endless disputes through the court.

27. CR told Professor Zeitlin that he loved both his parents.  The Professor commented that CR was quite likely to be highly defensive about expressing his feelings. For that reason, Professor Zeitlin did not recommend, as this stage, “any more in depth exploration of his feelings towards the relationship, unless the parental issues can be resolved with a stable agreement”. However, Professor Zeitlin regarded “the most important issue at present” as being “not whether (CR) should live with one or other of the parents but whether it is possible to enable both parents to release him from the battle”.  Professor Zeitlin then states: -

It should be noted that according to the two parents, CR has been neglected, hit, induced to say things that were wrong, witnessed parental intoxication, witnessed domestic violence and parental aggression towards others. He had been given ambiguous instruction with regard to religious culture and pushed to make allegiance with each parent against the other. He had had multiple caretakers, has moved home several times, changed schools and been subjected to sustained uncertainty. Between the two parents there would appear to be an overall clear description of emotional and physical abuse; possibly also of neglect.

28. Professor Zeitlin described CR’s continued involvement in the residence / contact battle as “likely to have a highly destructive effect”. So seriously did Professor Zeitlin regard the situation that he advised serious consideration being given to CR residing with neither parent. He puts the matter this way:-
Given that the geographic separation of the extended family it is unlikely that these can act as foster carers . Having met with the parents, CR himself and read the various records, I advise that serious consideration should be given to placing him at least for a trial period within independent foster care. The next task would be to see if the parents can between them come to some agreement as to how they would then resolve disputes in such a way that it does not adversely affect the child.

29. Having advised in the strongest possible terms that “involvement of the child in parental disputes is damaging”, Professor Zeitlin expressed the opinion that it would be “inappropriate to place responsibility for the outcome of these disputes on to CR’s shoulders”, and repeated that the nature of any arrangements concerning both residence and contact was less important than that an agreement should be reached and that it should be stable. Professor Zeitlin, however, saw no particular benefit to CR in moving him to his father’s care. Were he to stay with his mother, the arrangement for alternate weekend staying contact plus holidays appeared “sufficiently effective”.  It was, however, always best if there could be  some degree of flexibility.

30. Professor Zeitlin opposed a shared residence order on the ground that in his experience “fully shared residence has a high risk of ongoing disputes unless the child is largely in residential schooling with the shared residence being principally at holiday time”. (This is a point which, I believe, should be revisited. A shared residence order under Part II of the 1989 Act is a legal, not a psychiatric concept, in relation to which; (a) there is now a substantial jurisprudence; and (b) a psychiatric opinion, however distinguished its source, is not determinative).

31. In his conclusion, Professor Zeitlin reverted to his main theme that what was required was “a primary intention on the part of both parents to attend to the best interests of the child. That requires being prepared to put their own interests second.” Professor Zeitlin then discussed possible work with the parents and re-emphasised the damage to CR and the need to consider independent care. He adds:-

The further risks commented on above would include the impact of the child eventually becoming alienated to both parents. If that were to happen then there are a range of future emotional behavioural problems that could ensue including conduct disorder, anxiety states, depression and personality disorder. The child would be particularly vulnerable to the adverse effects of antisocial peer groups.

32. I have cited at length from Professor Zeitlin’s report; (1) because of its importance in the case; and (2) because of the wisdom of much of what he is saying. My advice to both parents is not only carefully to read the extracts which I have selected, but to re-read the whole report. This is a theme to which I will return at the end of this judgment.

33. For present purposes, however, it is to be noted that Professor Zeitlin is not recommending a transfer of residence to the paternal grandparents. He is advocating consideration of a change to independent foster care.

The report of the guardian completed on 26 February 2009
34. The guardian’s report was completed on Thursday 26 February 2009. It will be recalled that the final hearing was due to commence on Monday 9 March. The guardian also filed a position statement on Friday 6 March. It is in these two documents that the proposition is advanced, for the first time, that CR should live permanently with his paternal grandparents.

35. I wish to make it quite clear that I am in no sense critical of the guardian for forming a view as to where CR was to live.  That, after all, is one of her functions in the proceedings. At the same time, it does seem to me that the lateness of that view’s expression is unfortunate. The parental grandparents were not (and are still not) parties to the proceedings. They had made no application for residence.  The guardian’s assessment appears to have been based on  a visit to their home on 14 January 2009, an observation of the father’s contact at their home on 31 January 2009, and a further visit to their home on 21 February 2009, some five days before the report was completed. The result, in my judgment is that the guardian’s assessment is both superficial and is not thought through. It has other deficiencies to which Miss Faggionato adverted in her skeleton argument, and which I will discuss in due course.

36. The guardian comments early in her report that CR “is not an easy child to get to know. He does not seem relaxed or carefree”, although she noted that he has a sense of humour.  He was, however, “wary”. In this respect her observations mirror those of Professor Zeitlin. The guardian also agrees with Professor Zeitlin about the parents’ “need to win and to prove the other wrong”. This, she says “has taken over the need to place CR’s needs above their own”.

37. The guardian records having met the paternal grandparents on three occasions. She identifies their commitment to CR and details their involvement in his early life. She records that they “wanted to be available to assist in his care. They wished to support their son in his application for residence of CR and confirmed that they would be available to help with his day to day care and ensure that he attended school on time and was also collected on time”. Her heading relating to the paternal grandparents comprises three paragraphs.

38. The guardian then rehearses the mother’s case. She records the mother’s particular upset at the Professor’s suggestion that CR should be cared for independently of his parents. The guardian did not feel that the mother had assimilated Professor Zeitlin’s analysis of her contribution to the emotional harm CR had suffered. She “minimised matters”.  She acknowledged that she had been suffering from depression  as a result of the court proceedings and financial difficulties which had resulted in the repossession of her home in January 2009. She asserted that she was trying hard to address the concerns about CR’s schooling, and believed the situation was under control. The guardian discussed with the mother and her husband the prospect of the paternal grandparents caring for CR. The mother did not support that view.

39. The guardian then reported on the father. He was seeking a residence order on his own account.  He expressed concerns about the stability of the mother’s home environment and her religious beliefs.  He was, she thought, able to acknowledge a number of Professor Zeitlin’s concerns and the effect of the ongoing dispute on CR.

40. After  discussing her attempts to meet the parents together, the guardian turns to Professor Zeitlin’s report. She records a conversation which she had with him on 23 February 2009, in which he confirmed that placement of CR with  independent carers  was more to do with “removing him from the battle”.  She then says:

When I asked if the paternal grandparents could be seen as fulfilling the task of carers, it was his view this merited some consideration. However, he suggested it would not work unless mother agreed, There was also a risk that father would see this as a victory. We agreed there would need to be clear boundaries and an acceptance by both parents that the grandparents were in charge.

41. The guardian then goes through the welfare checklist in section 1(3) of the 1989 Act.  I do not propose to set out this part of the guardian’s report in detail. She records, however, that whilst CR’s physical care on the part of his mother was acceptable, she has concerns about his emotional needs. Under the heading “the likely effect on the child of any change of circumstances”, she does not mention the removal from his mother’s care, and her reference to the separation from C is terse: it would “have an effect on both CR and C. I suspect that it might impact less on CR  because I am not sure about his capacity to form emotional attachments”.  She concludes under this head:
However, it is my view that CR’s emotional needs must have priority over the sibling relationship. It may be that if there is a change in CR’s circumstances and he was removed from the direct care of either parent that he might have a better chance of achieving emotional stability at this time.

42. At paragraph 21, under the heading “the child’s age, sex, background and any characteristics of the child which the court considers relevant” the guardian makes a passing reference, for the first and only time, to the fact that CR has a paternal aunt. It appears (albeit not from the report) that she lives with the paternal grandparents.

43. The guardian then refers to the involvement of social services and follows this with an assessment of the capacities of CR’s parents. In relation to the paternal grandparents. She says:-

(The paternal grandparents) have indicated they would be willing to assist their son in the care of CR. I have spoken to them about the possibility of caring for CR on a short term basis to allow an opportunity for CR to be removed from the parental conflict.  They would be prepared to do this and are aware that I consider them as suitable long term carers. Whilst I am more than aware  that (they) have a loyalty to their son I know they are committed to CR and are genuinely concerned about the effect the parental conflict has upon CR. They are both able to provide him with a high standard of physical care together with love and nurturing, all of which he needs at this time. CR seems relaxed in their care and I believe he is able to retreat from some of his anxieties when he visits their home. I think it is likely that a good emotional attachment was formed with the grandparents during CR’s earlier years as a result of love and attention they provide. I am less certain about the parent’s (sic) emotional attachment because I believe they have been distracted by their own needs.

44. The guardian’s analysis is that CR’s parents “owe it” to him to resolve their differences. CR needed “a safe and nurturing environment” where he could “step back and observed his parents demonstrating they are putting his interests first”. Whilst the guardian was pessimistic about the parents’ capacity to engage upon that process, her recommendation was that “serious consideration should be given to the making of a section 91(14) to stop any further applications for the foreseeable future” and that “in the light of Professor Zeitlin’s report” the court “may consider ordering a section 37 report”. However, the guardian recognised that “this would cause delay and preliminary indications from the local authority suggest a view that the situation does not at this time meet the threshold for removal”.

45. The guardian’s recommendation was that  neither parent was in a position to care for CR, and that accordingly she was of the view that a residence order should be made in favour of his paternal grandparents. She adds: -

Whilst they are not independent they are a “safe pair of hands”. CR visits their home on a regular basis and I believe they would nurture him and protect him  both now and in the future. Removing CR from the care of either parent would also help the parents to focus upon their individual shortcomings and assist them in developing a more conciliatory attitude towards each other.

46. The guardian then goes on to propose an equal, three way  division of CR’s time at weekends between his mother, his father and his paternal grandparents. The school holiday should also be divided between the paternal grandparents and the parents.  The move should take place without delay. And there should be a temporary moratorium on direct parental contact.
47. In addition to the reports of Professor Zeitlin and the guardian, the court also had substantial written material before it prior to the commencement of the hearing. This included statements from the parents and historical statements from the paternal grandparents, core assessments from the local authority and a number of school reports. There were no statements from the paternal grandparents in support of the application for a residence order in their favour, although brief statements were produced during the course of the hearing.

The oral evidence heard by the judge
48. We are fortunate in having a transcript of the hearing before the judge between Monday 9 March and Thursday 12 March 2009.  It is, I think, important to see how the case was presented to the judge. There were cross-applications by the parents for residence. There was no application for residence by the paternal grandparents, and no application by them to be joined as parties to the proceedings. They would in any event have required leave to make a residence application.  There appears to have been agreement that there should be an order against the parents pursuant to section 91(14) of the 1989 Act, although we understand that the mother specifically resisted any such order were the child to be placed with the paternal grandparents.  It was plain that the local authority was not minded to take care proceedings under Part IV of the 1989 Act in relation to CR.

49. The first witness was Professor Zeitlin. It is plain from the early exchanges that he had only recently received the guardian’s report. It is equally clear from those exchanges that Professor Zeitlin was at pains to make clear that his recommendation was carefully worded, namely that “independent care should be considered”.  He had not, for reasons which were evidenced in his report, actually said that that was the only way forward.  He acknowledged, however, that the local authority had made it clear that it did not intend to intervene by taking care proceedings.

50. Professor Zeitlin spends some time in his examination in chief discussing the work which could be undertaken with the parents. It is then put to him in terms that independent fostering was not an option, and he is asked about the guardian’s recommendation that CR should be made the subject of a residence order in favour of the paternal grandparents. His answer is in the following terms:-

The question is: would it actually solve the problem? If the paternal grandparents had the support and trust of both parents it could be effective,  but that is not what I have read in the statements what were shown to me today. So the answer is: I would find it difficult to see how that would resolve the battle between the parents.

51. Slightly later, he gives the same answer in slightly different terms: -

Well, the question I would put, and I would ask if I am not the only person giving evidences: is there a reasonable chance that that could solve the problem? That is really the question we are trying to put. If the grandparents, or if they were trusted people, people trusted by both parents, that it would be one way for giving the child a safe haven. If residence to the grandparents is seen simply as a slight modification on the child going to father, and that the battle continued, then I can’t see what has been gained…….. the likelihood is that he has already been damaged in as way that cannot be put right.

52. In my judgment, these answers are highly significant.

53. In cross-examination by Miss Faggionato, Professor Zeitlin was taken to passages in the evidence which tended to demonstrate both that the paternal grandmother was not impartial and that the mother had good reasons for thinking not so.  Professor Zeitlin’s evidence was consistent: -

if his (CR’s) mother says, on these grounds, I am not prepared to see this as a reasonable solution and try and make it work, then my advice is, if that is the case, it is not going to work if the mother feels that this is an absolute objection. Otherwise, we are going round and round trying to find examples.

54. Slightly later, he repeats the same point:-

I would agree that if mother doesn’t say, never mind my feeling about this, if we can make it work and if we can ensure its safety, let’s see. If she can’t do that, then it is just not going to happen as far as I can see.

It is a continuation of the same discussion. It is not a different approach as to how one can solve the problem for the child.

55. In cross-examination by the father, the latter made it clear that he did not regard CR as an emotionally fragile child, and his attempts to persuade Professor Zeitlin that, if he could not have residence, the paternal grandparents should be given an order for residence were equally unsuccessful. The following exchange between the father and Professor Zeitlin both underlines the point and demonstrates the latter’s consistency: -

Q If the court were to decide that he shouldn’t live with myself, and he shouldn’t live with the mother, if it was a choice between foster care and the grandparents, do you think the reality of somebody he knows, and also still  having contact with both myself and the mother – would be preferable to foster care?

A I repeat that I said before, and that is: what is the indication that placement with the paternal grandparents would solve the problem?

Q But comparing it to foster care, so that is the option, foster care or the grandparents, which one would you choose?

A It is not a matter of choosing. If in fact – placement with independent foster carers puts the child  into an environment which does not centre on which parent has rights. It takes the child effectively out of that. It doesn’t stop the battle going on elsewhere.

Q. Right

A. It puts the child in a shelter, if you like. I will repeat what I said before. If grandparents were seen as being a safe place by both parents where the arguments over these details of what has happened in the past were not the main issue, then yes, kinship placements can help but one would need to ask in the particular case, should placement with the paternal grandparents in his case solve that problem? I can only repeat what I said before.

56. It is, I think, worth pointing out that Professor Zeitlin repeats his position at the end of his evidence in answer to questions from the judge.

57. On day two, the mother gave evidence. I see little purpose in reproducing swathes of her evidence. Suffice it to say that she dealt in detail with the criticisms made of her and repeated her strong opposition to a residence order being made in favour of the paternal grandparents. She was cross-examined at length by the father. In answer to the guardian’s advocate. she made it clear that the message of Professor Zeitlin’s report was that “we (herself and the father) both need to sort ourselves out, otherwise we are solely responsible for causing CR harm in that we would almost be doing it intentionally if we did not sort things out”. She thought she had taken these concerns on board and that her relationship with the father had improved.

58. After cross-examination on behalf of the guardian, Miss Faggionato asks to postpone her re-examination of the mother until the grandparents had given evidence. At this point, there were still no statements from them in support of CR residing with them. The  judge then intervened, and the following exchange occurred with the guardian’s advocate, Mr. Wilson:-

The judge 
What the guardian, you see, has proposed has taken up Professor Zeitlin’s point that CR needs to be removed from the battle. Professor Zeitlin has advised that if the grandparents are seen by one of other of the parents as being on the side of one of  other of the parents, then it does not actually remove him from the battle; it just leave him in a slightly different position on the battlefield.

Mr Wilson  
I think he said if they do not trust.

The judge 
Yes, if they do not trust.

Mr Wilson 
And I think we have heard enough evidence from (the mother) about her level of trust of the grandparents

The judge 
Well, no-one has asked her in fact

Mr Wilson 
No.

The judge 
Well, I was going to ask because if the grandparents are not an option, if Professor Zeitlin is right, then what am I supposed to do, because I am leaving this boy in the meddle of this battle?

Mr Wilson 
I have had a discussion about what we would be asking you to do – if you were unable to go along with the guardian’s recommendation lf a residence order in favour of the grandparents. We would be asking you to give a robust judgment in respect of the harm that you think CR might be suffering and directing a section 37 report.  

59. The judge then posits the possibility, canvassed by Professor Zeitlin, of work with the parents. The mother points out that the paternal grandparents “haven’t had anything positive to say about me in their statements” and  that placement with them would not be an “independent” environment. The mother then repeats her belief that the relationship between herself and the father had improved. Finally, she makes it clear in answer to the judge that she had no objection to a shared residence order.

60. On the following morning, the third day of the hearing, statements were produced from the paternal grandparents, and shown to the other parties. The father then gave evidence. He makes it clear that he is maintaining his application for residence. He is then cross examined by Miss Faggionato. Once again, I do not propose to  transcribe substantial portions of his evidence. There is no appeal from the judge’s decision not to award the residence of CR to him, and much of the cross-examination relates to issues of fact which are not material to our consideration of the case. The father makes it clear that he is opposed to “foster care” but would accept CR living with his parents.

61. The paternal grandmother then gave evidence. During the course of cross-examination, previous statements she had made about the mother were put to her, and the maternal grandmother confirmed  that she still felt, for example, that the mother used CR to upset her and the father. The paternal grandfather also gave evidence. Miss Faggionato likewise put to him previous statements he had made about the mother.

62. On the Thursday morning, the guardian gave evidence. She made it clear that nothing in the evidence had caused her to change her recommendation. However, there was  then the following exchange with  Mr Wilson:-

Q Professor Zeitlin has given a view that he would find it difficult to see how a move to the grandparents would resolve the battle without the trust and support of both parents. What do you say to that comment?

A I agree with that because there would be a risk even by moving CR to the grandparents, and certainly listening to the parents give evidence, that has reinforced that view in my mind. I am looking at things more in term of the degree of risk – i.e. there are a lot of benefits in using the paternal grandparents, but the risks are the individual parent’s behaviours and attitudes, and that is towards each other.

63. This, it appears, was the basis of her recommendation. She thought the idea of independent foster care “very stark” for CR and favoured a placement within his wider family. She then elaborated on the grandparents’ qualities as she had observed them. She accepted that they were not independent, but  they had “an investment in making this work because they care so much about CR”. She made it clear that she did not think the local authority would intervene by taking proceedings under Part IV of the 1989 Act, and the judge, of course, recognised that he would not compel the local authority to do so.

64. In cross-examination, Miss Faggionato pointed out that the guardian had not talked about the father’s sister in her report. The guardian says there was no particular reason for this. She also asked the guardian about the effect on CR of a move from his mother. The guardian’s response was that it would “provide (him) with some stability” and that he would not feel punished if he had a better time with the grandparents and if the move was sensitively managed.

65. Final submissions followed the guardian’s evidence. The judge heard briefly from the mother’s husband. The father ended by saying that he was prepared to go along with whatever the court thought best for CR. For the mother, Miss Faggionato reminded the judge that the issues before the court were whether or not CR should live with his mother or his father. There was no application for residence by the paternal grandparents, who would in any event require leave to make one.  She described their response (they would accept a residence order) as very passive. She reminded the judge of their closeness to their son, and their lack of independence. She reminded the judge of Professor Zeitlin’s evidence on that point. She pointed out that the paternal grandmother was 72, had had a hip replacement and had walked to the witness box with a limp. She would be in her eighties before CR attained his majority.

66. For the guardian, Mr. Wilson identified the critical question as being where CR should live. He described the guardian’s recommendation as “a last resort” for CR. He “accepted and realised” that the paternal grandparents did not “fit the criteria exactly as set down by Professor Zeitlin – notably the fact that they are not independent and that they are not accepted by the mother”.  He also accepted that the option was not “risk-free”. It was a “difficult decision” for the judge, but on balance the guardian believed that it was the best option she could recommend.

67. At the conclusion of submissions, the judge announced that he proposed to rise for fifteen or twenty minutes to consider them. He then returned to court and gave judgment.

The judgment
68. As I have already pointed out in paragraph 5 above, and as the judge himself recognised, the judgment, being extempore, was not as “polished” as he would have wished. For present purposes, I propose to concentrate on the reasons the judge gave for following the advice of the guardian.

69. The judge summarised the guardian’s position in paragraph 12 of the judgment. Nothing turns on that. Having set out the background, and having summarised Professor Zeitlin’s report, the judge then said this: -

58. Professor Zeitlin said that consideration should be given to removing CR from the battle. This would give CR  a better chance of growing up into adulthood less damaged. He doubted that the existing damage to CR could be put right, but further damage could be lessened for the future. In his report, he had recommended consideration be given to removing CR to independent foster parents. An independent home away from the battle had the best chance of success. In oral evidence, her was concerned that the grandparents are not seen by the mother as independent.

59. I accept Professor Zeitlin’s evidence, in particular as to harm CR has suffered and as to the likelihood of further serious harm if there is no change. The guardian takes a different view to Professor Zeitlin as to the viability of a placement with the grandparents. As I explain below, I prefer the guardian’s view, for the reasons which she gives.

60. The mother set out her case in her statements, as I have said. In her oral evidence she said that both she and the father needed to improve their parenting. She was against the proposal of the guardian to move to the grandparents. She said that she and the father had been getting on far better since the Child in Need meeting in 2008. Because of the lateness of the hour, there is no time to set out her evidence

61. The father’s case is set out in his statements. Again, because of the time, there is no time to go through  his oral evidence in great detail. I have had regard to it.

62. The guardian gave oral evidence. In her report she recommended that CR should live with the grandparents for the reasons that she gives in paragraphs 52, 56, 57 ,58 and 59.

[ I interpolate: none of these paragraphs, in my judgment,  introduces material which I have not already summarised.]

In her oral evidence, she confirmed this was still her recommendation. She said that she agreed with Professor Zeitlin. She agreed that it would be a risk if CR went to live with the grandparents, especially having heard the parents give evidence. The risk is the behaviour of the individual parents to each other. “I would favour a placement with the grandparents over one with either parent”.  She said of independent foster care: “This would be very stark and CR is keen to live with his own family. My main concern is that it does not meet the threshold set by the local authority for intervention. Therefore if there were a section 37 report ordered by the court, the local authority would not in fact intervene”. She thought the grandparents could manage. She said that it would be a difficult job for them.  However, she was very impressed by the grandparents. She thought they were genuine and honest people. They did not engage in any discussion about the mother or the father. They were very focused about CR  They were insightful about CR They were genuinely worried about their grandson. They could see shortcomings in both the father and the mother. They talked particularly of how CR presented on visits. There was a reticence by CR to talk. They had a good understanding of how CR was trying to deal with his life.

70. When dealing with the applicable law, which he does between paragraphs 64 and 67 of his judgment, the judge records the fact that he has been referred to the judgment of Ormrod LJ in  D v M (Minor; Custody Appeal) [1983] Fam and to the more  recent case of  Re G (children) [2006] UKHL 43. [2006] 2 FLR 629.  He then both cites and agrees with a passage  from the judgment of Sumner J in Re C (Residence) [2007] EWHC 2312 (Fam) [2008] 1 FLR 826. but distinguishes the case in paragraph 66 of his judgment by saying that  he is satisfied that CR “has suffered harm – he has suffered significant harm” and that he is at serious risk of significant harm in the future.  He regarded leaving CR where he was while the parents sought to remedy matters as “not realistic”.

71. The judge’s only reference  to the effect on CR of separation from C is contained in paragraph 71, where the judge says:-

If he moved from his mother, he would no longer have the company of his half-brother. That is a factor which I do not overlook.

72. In paragraph 72 the judge repeats his view that CR has suffered significant harm due to the parental conflict and he cites the “endless referrals to Social Services” as examples of each parent being “prompted by that parent’s focus on his or her conflict with the other, rather than by a real appreciation of CR’s welfare”. He took the view that neither parent was likely to change. The crux of the judgment seems to me to be contained in paragraphs 82 to  86, which read as follows:-

82. I am clear that it would not be in CR’s interests to move to the father. There would be no fewer arguments. There would be more likely to be difficulties over arrangements for contact with the mother. The father in his approach to contact has proved himself rigid and inflexible at times. The Christmas holidays in 2008 is an example where there was flexibility by mother which could not be reciprocated by father. His attitude to arrangements for contact in summer 2007 is another example. The father does not trust the mother or her care of CR. Up till now, the father has been relentless in pursuit of his viewpoints.

83, I have considered carefully, and I have hesitated, about the option of the grandparents. I accept that they are not independent. They are, if I may say so, a charming couple. They have CR’s best interests at heart. They have not hitherto been totally independent. However, I accept the guardian’s assessment of them. I have had the benefit of having seen them in the witness box. In my judgment there is a good prospect of them providing CR was a safe haven where he can begin to have a life that is not overlaid with a continuing battle between his parents, where the focus will be on CR and not on the battle. The grandparents understand that they will be the primary carers for CR and they understand that it will be they who will be making decisions, albeit in consultation with the parents, but it will be they who make the decisions about CR.

84. It is correct that the grandparents are not trusted by the mother. That is a difficulty. I accept the guardian’s evidence that the grandmother has been warm to the mother in the past and there is a reasonable chance that she can be in the future.  The grandmother and the mother have worked together in the past in that grandmother used to care for CR even after the parties separated. In my judgment the grandparents will do what it best for CR. They care deeply for him Both grandparents recognise that the battle is harming CR, and in doing so they do not distinguish, when apportioning blame, between their son and the mother. They put themselves forward to side with CR  and not with the father.   They must understand that they must look after CR with CR’s best interests at heart, and that they must deal even-handedly with both the mother and the father.

85. It is not a risk free option. Not least there is the risk of interference from the father. However, in my judgment there is a greater risk if the other options are taken.

86. I accept the guardian’s evidence. Going to live with the grandparents is a better option for CR than being placed in independent foster care. 

73. The judge then goes on to make a Family Assistance Order under section 16 of the 1989 Act, and order under section 91(14) and orders for contact. As I have already stated, he refused an application by the mother for permission to appeal.

The grounds of appeal and Miss Faggionato’s attack on the judgment
74. Miss Faggionato’s first ground of appeal  relates to the judge’s finding that CR had suffered significant harm.  Her second ground contains seven points. She asserts the judge erred in law:

1. by failing to give due weight to the importance to CR of continuity of care and the preservation of established relationships:- see D v M (minors) [1982] 3 All ER 897;

2. by failing to give due weight to the particular importance of a child being raised by his biological parents, and the unique contribution of a biological mother: see Re G (children) [2006] UKHL 43

3. by failing to give due weight  to the value of the relationship between CT and his brother C: - see C v C (Minors: Custody) [1988] 2 FLR 291;

4. by failing to give due weight to the fact that there was no application by the paternal grandparents and the fact that they were not party to the proceedings;

5. by failing to consider the impact on CR’s relationship with his mother of taking CR away from the mother and placing him with the paternal grandparents with the massive consequential reduction in contact such a placement entailed and by failing to give proper consideration to CR’s reintegration with his mother in the future;

6.  by failing to first consider (sic) other methods of (a) investigating CR’s welfare and (b)  promoting CR’s welfare for example by  pursuing the family therapy outlined by Professor Zeitlin;

7. by imposing a section 91(14) bar on the mother making an application in respect of CR against the paternal grandparents when (a) no such application for a section 91(14) order was before the court; (b) there had been no such previous applications against the paternal grandparents and (c) placement with the paternal grandparents was an untried placement with a number of details (such as school placement detailed contact provisions) yet to be determined.

75. Miss Faggionato also complains that the judge failed to take relevant matters into account. Amongst the factors she lists under this head are the fact that there had been no referral to Social Services by either parent since September 2007, the grandparents’ hostility to the mother as demonstrated in their court statements; the age and health of the paternal grandmother; the existence of the aunt who was apparently living in the grandparents’ house, the oral evidence of Professor Zeitlin to the effect that  CR’s placement with the paternal grandparents was only in his best interests if the parents agreed and if the mother supported such a placement. He had also given inadequate weight to  the fact that the parents were willing to engage with each other and with therapy. Finally, Miss Faggionato complains that the judge had wrongly taken into account the guardian’s evidence that the local authority would not take action were a section 37 report to be ordered.

Significant harm and the involvement of the local authority
76. I propose to deal with this aspect of the case separately and out of turn, because although Miss Faggionato devotes a whole section of her skeleton argument to it, and although the guardian supported the making of an order for a report under section 37 of the 1989 Act, I have reached the clear conclusion that debate about whether or not CR has suffered significant harm sufficient to trigger the threshold for proceedings under Part IV of the 1989 Act is, on the facts of this case, wholly sterile.

77. None of the professionals in the case doubts that the dispute between his parents has caused CR serious emotional harm. The simple fact of the matter, however, is that the local authority, which is the ultimate arbiter of these matters, does not think the threshold has been crossed, and had made it clear that it will not institute proceedings under Part IV of the 1989 Act. As the judge recognised, and as had been clearly established since Nottinghamshire County Council v P [1994] Fam 18, the court cannot compel a local authority to take care proceedings, even if the court takes the view that such proceedings are essential for the protection of a given child.

78. In the instant case, a reading of the local authority’s core assessments and the notes of the meetings held pursuant to sections 17 and 47 of the 1989 Act explains the local authority’s stance. Most parents who have complaints about the conduct of the other resolve them without reference to the local authority. With these parents, when, for example, there was an allegation of an assault on CR (the first core assessment resulted from an allegation that the father had smacked CR in the shower) a complaint was be made to the local authority, and the machinery of child protection was wheeled into play. The outcome in each case was an investigation which resulted in no action being taken. In other words, the core assessments demonstrated the parents’ inability to co-operate: they did not demonstrate that CR’s welfare required care proceedings to be instituted.

79. In my judgment, what the judge was saying – and he was right to say it – was that there was no point in a section 37 report as it would not result in the local authority taking action and enabling the judge to make an interim care order under which the local authority could remove CR to independent foster carers. In other words, that option was one which was simply not open to the judge.

80. On this point, I agree with the judge. I see no point in a section 37 order. It would simply cause delay and further, unnecessary investigation to no purpose.

81. I have, myself, in the past used section 37 as a means of  removing children from the arena to a safe haven – see Re M (Intractable Contact Dispute: Interim Care Order) [2003] EWHC 1024 (Fam): [2003] 2 FLR 636. In that case, a mother had falsely persuaded the children concerned that their father and paternal grandparents had both physically and sexually abused them. The result was a cessation of all contact between the children, the father, and the wider paternal family. Reintroduction to the father was  achieved by the local authority who intervened in the proceedings as a result of a section 37 report which I had ordered, following a specific finding that the children in question had suffered significant harm and needed to be removed from their mother’s care under an interim care order so that they could be re-introduced to their father.  In the instant case, the judge chose not to go down that road.  I cannot say that he was plainly wrong not to do so. In my judgment, he was correct to recognise on the facts that to order a section 37 report would achieve nothing.

82. It is, of course, the case, that a judge has the power under section 10(1)(b) of the 1989 Act to make a residence order in favour of any third party in relation to children  on his or her own initiative, and without an application for such an order having been made, if the judge considers that such an order should be made. However, generally speaking, the present state of the law does not permit the court to remove children from their parents’ care to  third parties without either; (1)  permission being sought by those third parties from the court; or (2)  the intervention of a local authority taking proceedings under Part IV of the Act. In other words, Professor Zeitlin’s proposition that independent foster care be considered was not, on the facts, an available option. In these circumstances, a section 37 report would be redundant.

The balance of Miss Faggionato’ skeleton
83. Miss Faggionato is, I think, on firmer ground in the remainder of her skeleton. I propose to reproduce a great deal of her argument, for reasons which will, I think, become apparent.

84. In relation to the question of a change of residence, Miss Faggionato referred the judge to the importance of the status quo in a child’s life, as emphasised by  Ormrod LJ in D v M (Minors: Custody Appeal) [1983] Fam 33 at  41, in which he had said:

it is generally accepted by those who are professionally concerned with children that, particularly in the early years, continuity of care is a most important part of a child’s sense of security and that disruption of established bonds is to be avoided whenever possible to do so. Where, as in this case, a child of two years of age has been brought up without interruption by the mother (or a mother substitute) it should not be removed from her care unless there are strong countervailing reasons for doing so. This is not only the professional view, it is commonly accepted in all walks of life.

85. She argued that Professor Zeitlin endorsed this view of continuity of care with respect to this particular case. She had also referred the judge to the judgment of Sumner J in  Re C (Residence) [2008] 1 FLR 826. Miss Faggionato also complained that, despite being provided with clear authority supporting the submission that the biological parents occupy a special place in the child’s life, there was little or no indication in the judgment that there was any particular hurdle to surmount when seeking to oppose a parent who wishes to care for his or her own child. The judge had been referred to the case of Re G (Children) [2006] UKHL 43 in which the House of Lords had given clear opinions as to the value and role of the biological parents. See, for example, the speeches of  Lord Nicholls of Birkenhead  at paragraph [1] and Baroness Hale of Richmond at [25] et seq.

86. Miss Faggionato submitted that where the court was considering placement other than with the parents, third parties did not start from the same position as the child’s parents. She submitted that the court must exercise particular care in such cases to establish that the care of the parent(s) is in some way so deficient as to justify placement with third parties. She also pointed out that, had the paternal grandparents wished to make an application for residence (or indeed any section 8 orders), they would have required the leave of the court (see section 10(2)(b) of the 1989 Act). This requirement, she argued, gave statutory support to the proposition that parents were of central importance in the lives of children; their privileged position in this regard is promoted by the restriction on applications being made by others without the leave of the court.

87. The judge had noted that CR’s ‘primary’ home had been with his mother, and that she had been his primary carer. However, he did not, she argued, address the central role of the biological parent (whether mother or father). Accordingly, he had not balanced that important principle against any others, and thus had not properly exercised his discretion in taking CR away from his mother.

88. Miss Faggionato also pointed out that CR had lived with C for all of C’s life. The effect of the judge’s order would be that C and CR would only see each other every third weekend and during about four weeks of school holidays. There was abundant authority for the proposition that, where possible, siblings should be brought up together in the same household: see, for example, the decision of this court in C v C (Minors: Custody) [1988] 2 FLR 29. It was unfortunate that the guardian had failed to include CR’s half-brother C in her description of CR’s family composition. The judge had perpetuated this lack of attention to CR’s relationship with C in his judgment, failing to properly consider this important relationship. The extent of the judge’s consideration was to say ‘if moved from the mother he would no longer have the company of his brother.  I do not overlook that.’  That was not enough.

89. Miss Faggionato complained that the judge had not addressed the impact on CR of a move to his grandparents. Having established / accepted that CR was a vulnerable child, who had taken some time to settle into his present school, (where the recent reports were more positive), the judge had failed to consider the impact on CR of a move away from his home. The judge failed to assess the impact on CR of moving from the full time care of his mother to a regime where he would only see her once every three weeks.

90. The judge had also been wrong not to take up Professor Zeitlin’s suggestion of work with the parents. Although Professor Zeitlin expressed some concern as to the parents’ ability successfully to engage in the treatment programme he had nonetheless suggested that  both parents wished to take up this work, and their present commitment to it was not challenged by the guardian. Miss Faggionato submitted that where the court is proposing to take the very serious step of removing a child from his parents, and both parents seek to resolve the difficulty on which the removal is predicated,  the court should give the parties the opportunity to act on the expert evidence provided and take up the therapeutic work offered.

91. With specific reference to the paternal grandparents, Miss Faggionato pointed out that  Professor Zeitlin had not  recommend that CR be removed from his parent(s). He said that placement with independent carers would ‘merit serious consideration’. Having been told by the guardian that they were considered suitable long term carers, the paternal grandparents had not make an application in respect of CR. They did not (with the assistance of the guardian or otherwise) seek in advance of the hearing to make their position known to the court, whether by letter or by statement. At the start of the hearing, the court and the parties had nothing from the paternal grandparents themselves to indicate or support their position. In light of this, combined with Professor Zeitlin’s evidence that a placement with the paternal grandparents ‘would not work unless the mother agreed’, and the partiality of the paternal grandparents to the father, the mother’s case proceeded on the basis that the question for the court remained: in favour of which of the two parents should a residence order be made?

92. Miss Faggionato expanded upon the difficulties which the guardian’s late stance had caused the mother. At the start of the hearing, the judge had queried whether he even needed to hear from the paternal grandparents. This indicated to the mother that the judge was also of the view that the question for the court was as between the parents. The paternal grandparents eventually provided short witness statements at the start of day three. The mother and her representatives therefore only had the duration of the short adjournment to consider the content of these statements, and the mother was not able to respond to them in evidence.

93. Moreover, in the course of the paternal grandparents’ oral evidence it transpired that CR had been with them for many of the Saturday nights of the father’s contact. This alternate weekend staying contact was, Miss Faggionato submitted, entirely unlike permanent care.  The mother’s objection to placement with the paternal grandparents (in addition to her general objection to having CR removed from her care) was put on two bases; (1) their partiality to the father / hostility towards her and (2) their intrinsic unsuitability as permanent full-time carers for CR.

94. Miss Faggionato pointed out that both paternal grandparents had previously prepared statements in support of their son. She had identified in cross examination a number of statements which were distinctly hostile to the mother. (I do not propose to reproduce them here, although words such as “vendetta” and other very strong epithets had been used.) The paternal grandparents, counsel submitted,  were thus far from “neutral” or “independent”.

95.  Miss Faggionato pointed to a clear contradiction in the judgment. It arose in the following way. In the course of his evidence the  judge had appeared to accept Professor Zeitlin’s view that placement with the paternal grandparents would not work unless both parents could live with it as a solution.  Professor Zeitlin also said in evidence that ‘if the paternal grandparents had been supportive of both parents [placement with them could have been] effective, but that is not what I have read in statements shown to me today.’ Professor Zeitlin also said that he found it difficult to see how placement with the paternal grandparents would resolve the disputes between the parents. The importance of both parents supporting a placement with the paternal grandparents thus pervaded Professor Zeitlin’s evidence as to such a placement.

96. Accordingly, in so far as Professor Zeitlin had considered whether CR should be moved from both of his parents, he said that independent care could be considered. The judge accepted that the paternal grandparents were not independent, but he nonetheless went on to accept the guardian’s assessment of them. The judge’s attention was specifically drawn to the paternal grandparents’ previous statements critical of  the mother. The judge also heard the paternal grandparents affirm those statements from the witness box, and heard the paternal grandparents say nothing had occurred to make them change their minds from the statements.  The paternal grandmother said inter alia that she still thought that the mother ‘uses’ CR to upset the Father.

97. The judge thereafter failed properly to deal with these clear, unambiguous statements against the mother. It was not sufficient to simply rely on the guardian’s assessment of the paternal grandparents as she herself failed in her report to consider the statements that the paternal grandparents had previously made (as opposed to their saying to her that there had been ‘difficulties’).

98. Miss Faggionato further submitted that the age of the grandparents was a relevant consideration: see Re C (A Child) [2009] EWCA Civ 72 per Wilson LJ. The paternal grandmother is now 72. Given her age, there must be some doubt whether the she would be able to continue to offer CR a home throughout his minority, and in particular whether, even were she (as is hoped) to remain living throughout that period, she would retain the physical and emotional strength to properly cater for CR’s needs as a teenager. The judge failed to pay any regard to this aspect of placing CR with the paternal grandparents.  The paternal grandmother accepted  that she had had a hip replacement about 14 years ago. The paternal grandmother will on the judge’s order be the primary carer for CR; her wellbeing is a relevant feature that the judge failed to consider.

99. Miss Faggionato also made the point that the paternal grandparents were first made aware of the implications of a residence order being made in their favour when they were re-examined by the guardian’s advocate. As the paternal grandmother said in oral evidence, she has not been told by the guardian whether CR’s placement with her would be short or long term. Furthermore, the judge failed to establish and then give reasons for how a placement with the paternal grandparents would resolve the difficulties that he perceived to exist in CR’s life; a question that had been raised by Professor Zeitlin. In so far as the judge premised significant harm and the need for a change of residence on the inability of the parents to reach agreement, simply placing CR with the paternal grandparents did not prevent the parents disagreeing with each other. In so far as he premised significant harm and the need for a change of residence on applications to social services, simply placing CR with the paternal grandparents does not prevent either parent making an application to social services.

100. In relation to CR’s paternal aunt, Miss Faggionato submitted that the court was required (by section 1(3)(f) of the  1989 Act) to have regard to ‘how capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs”. In placing CR with the paternal grandparents, the judge was placing CR in the house where the paternal aunt lives. Yet there was no mention in the guardian’s report that she had met or interviewed the paternal aunt. There was no discussion or assessment of CR’s relationship with his aunt. Beyond her name, age, the fact that she lives with the paternal grandparents and that she has previously looked after CR when the father was supposed to be having contact with CR, nothing (counsel’s emphasis) was known by the judge about paternal aunt.

101. Miss Faggionato  thus concluded that the judge had before him cross-applications by the parents (genetic, gestational and psychological) of an 8 year old boy who had always lived with the mother since the parents separated. The judge had made a residence order in favour of the paternal grandparents, despite the expert advice that this was not in the child’s interest unless the parents agreed (which they did not), on the basis that the child had and would suffer significant harm (which was not the local authority’s view, or the guardian’s written evidence).

102. Miss Faggionato accepted that the court has jurisdiction to make orders in favour of non-parties. However, she submitted  that the court should exercise extreme caution in doing so, particularly where; (1) the net effect to take a child away from the parent with whom he has lived all his life; (2) the course of action was actively opposed by the parent concerned; and (3) the course of action was not supported by the local authority.

103. The judge’s decision had  been plainly wrong.  He had failed properly to consider the central importance in CR’s life of being brought up by his parent(s), the importance of stability for CR, and CR’s relationship with his half-brother and step-father. The judge thereafter failed properly to weigh the various competing factors; gave undue weight to his finding of significant harm and his belief that ‘something had to be done', and therefore led himself into error in placing the child with the paternal grandparents.

The submission from the father and the guardian
104. With the assistance of his McKenzie  friend, the father made a number of submissions, which I do not propose to reproduce. For the guardian, Miss Birinder Kang, who did not appear below, sought to maintain the guardian’s position.

105. The guardian did not support the appeal and respectfully invited the Court to dismiss it.  Miss Kang submitted that the judge, having read the papers and having heard the oral evidence of the witnesses relied upon, did not err in law or reach a decision (exercising his discretion) that is so plainly wrong that this court should seek to change or alter the orders made.

106. The guardian recalled that the judgment under appeal had been given late on 12 March 2009, starting after 4pm and concluding at approximately 6.30pm. She submitted that it was not ideal that the judgment was delivered so late in the afternoon and under time constraints, however this was the reality under which busy county courts often had to operate. She submitted that the judge addressed the relevant matters, weighed up the respective cases put to him and balanced the competing factors in a difficult case appropriately. Had the judge had more time, he no doubt would have gone into more detail in his judgment.

107. Miss Kang addressed each of Miss Faggionato’s areas of appeal. In relation to the judge’s approach to the matter of changing CR’s residence, she set out Professor Zeitlin’s opinions. His evidence had addressed and highlighted the harm caused to CR to date as well as the future risk, in the event that the parental conflict was not addressed. Professor Zeitlin had been asked about whether the parents could undertake some therapeutic work to address matters; however the Professor whilst outlining the work that could be undertaken concluded “I am afraid with other circumstances, I am not hugely optimistic”. Professor Zeitlin did not see the grandparents as being independent and questioned whether this would result in CR being removed from the parental “battle”.

108. The guardian also supported CR being removed from the parental conflict and was of the opinion that placement with the grandparents was the preferable option. She reminded the court of the importance of maintaining the status quo in a child’s life, the fact that he had lived with his mother for the majority of his life and the importance of his half-sibling C. These points were put to and addressed by Professor Zeitlin, the guardian and ultimately the judge in his judgment.

109. Miss Faggionato had drawn to the court’s attention the case of Re C (Residence) [2008] 1 FLR 826, where Sumner J was dealing with a 7 year old boy who had always resided with his mother. The judge had stated that  C  had spent all his 7 years under his mother’s care, and that he had a strong bond with her. No court, Sumner J had said, would alter that situation without clear evidence that he had suffered harm which would continue or was at serious risk of that.  Miss Kang pointed out that  the judge had referred to this passage in his judgment and concluded “I am satisfied that CR has suffered harm – he has suffered significant harm – and that he is at risk of significant harm in the future”.  The cases could thus be readily distinguished.

110. Miss Kang  submitted that the judge had directed himself as to the appropriate case law and considerations necessary in determining whether there merited a change of residence. The judge had accepted the evidence of experienced professionals in this regard, namely Professor Zeitlin and the guardian.

111. In relation to the judge’s approach to placement with the paternal grandparents, Miss Kang submitted that the judge was entitled to consider placement with the grandparents and make such an order if he considered it appropriate despite having no written application before him: see section 10(2) of the 1989 Act.

112. Professor Zeitlin had not met the paternal grandparents as part of his assessment. In any event he did not consider that they would be “independent” or that CR would be sufficiently removed from the “battle” between the parents. The guardian disagreed with the Professor on this issue. The guardian had met with the grandparents on three occasions, including seeing CR with them.  The guardian did not support removing CR to independent foster care as she felt it was preferable for CR to live with his family and foster care would be “very stark” for him and that she was concerned as to how CR would manage such a move.

113. The judge had had the opportunity to hear both the grandparents give evidence and he was clearly impressed by them. Miss Kang further submitted that the judge weighed matters very carefully in this difficult and sad case and in doing so exercised his discretion and judgment on the evidence before him.

114. Miss Kang thus submitted that the judge was not plainly wrong in the orders that he made. Further, she submitted that reading the judgment demonstrated that the judge did not err in law and took all the necessary factors into account when balancing the competing applications before him. She therefore respectfully submitted that this court should dismiss the mother’s appeal.

Discussion and conclusion
115. I am in no doubt that Miss Faggionato’s submissions prevail, and that the appeal must be allowed. Whilst I sympathise with the judge’s pressure of work and his natural wish not to make the parties wait for a judgment, I think it a great pity that he did not take more time – even the weekend – for reflection. I remain of the view that, had he done so, he would not have reached the conclusion he did.

116. I divide my disagreement with the judgment into two separate parts. In the first place, I think there is considerable force in Miss Faggionato’s submission that the judge has not – in effect - grappled with the fundamental proposition that children have a right to be brought up by their natural parents unless their welfare positively demands the replacement of that right.  The judge’s natural view that CR needed to be taken out of the arena has, in my judgment, led him to give that factor an undue weight, and has caused him to lose sight of the fact that he was removing CR not only from his mother’s care but depriving him of family life with his half-brother. The absence of any discussion of both factors in the judgment is startling, and whilst the first might be explained by  the undoubted harm suffered by CR whilst living in his mother’s care, the latter is a serious omission which, in my view, vitiates the judgment.

117. Furthermore, there is no discussion by the judge of the very substantial reduction in the time which CR would spend with his mother, step-father and C under the regime envisaged by the judge. Whilst precise calculation of the days may vary, the regime provided only for very third weekend during term time and one third of the holidays. This represents a very radical change, which the judge simply does not address.

118. Secondly, there is also, I think, a fundamental flaw in the judge’s reasoning. Professor Zeitlin was of the opinion that a placement with independent foster carers should be considered. The judge appears to have accepted Professor Zeitlin’s opinion, whilst at the same time recognising the fact that the paternal grandparents are patently not independent.  The judge cannot, it seems to me, accept the evidence of Professor Zeitlin and then take a course which is not one which the Professor recommends.

119. This point is directly linked to the guardian’s assessment of the paternal grandparents. I repeat that I do not criticise her for forming the view that CR would be better off placed with his paternal grandparents. But her analysis, with all respect to her, is not well-researched or properly investigated. It is based on three short meetings with the grandparents. There is no real discussion of the paternal aunt, or the effect on CR of a move. There is no discussion of the maternal grandmother’s age – a vitally important consideration in my judgment - or of her capacity to care long term for a boy of 8.

120. It follows, in my judgment, that there simply was not a proper platform from which the judge could take the step of placing CR with his paternal grandparents.  To put the same point a different way, the ground had not been properly prepared.

121. It follows, in my judgment, for these reasons and for all the reasons Miss Faggionato gives, that the judge was wrong to place CR with his paternal grandparents. I am, of course, aware, as Miss Kang submits that the judge was exercising a broad discretion. Moreover,  he saw and heard the witnesses. He is an experienced family lawyer, and a humane and highly competent judge. Despite all this he had, in my judgment, gone wrong in this case, and following the various strands of G v G it is in my view the duty of this court to reverse his decision.

122. There is, in my judgment, an additional factor. The judge had the advantage of the wisdom and experience of Professor Zeitlin. The judge  discounted the possibility of further work with the parents. I do not do so. I hope this case has given the mother a fright. I hope it has also given the father a fright. They have come within a whisker of losing their child. The order which this court seeks to impose gives then what may be a final opportunity to take the advice of Professor Zeitlin or his nominee, and to work together to improve their relationship for CR’s benefit. I therefore propose to close this judgment with a message directed to them.

Postscript
123. For the reasons given in paragraph 122, I cannot leave the case without addressing some remarks directly to CR’s parents. In a recent case,  Re T (a child) [2009] EWCA Civ 20, I conducted a similar exercise, and expressed myself in wholly conventional terms. Both of the other members of the constitution expressly associated themselves with what I said, which was as follows: -

66. I cannot part with this appeal without addressing a few words directly to L's parents. The judge was plainly right to find that both parents love L, and that, in turn, she loves them and is "happy with either". However, the judge was also right, in my view, to find that there is a risk to L if her parents "continue to be at loggerheads". Indeed, I would put the matter more strongly. If the parents retain their current hostility to each other, they will undoubtedly cause L serious emotional harm.

67. L is a child of mixed heritage, and in my judgment it is essential that she benefits from both parts of it. What matters, in my view, is that L should have love and respect for each of her parents and should be able to move easily between them. To achieve this, the parents must have respect for each other.

68. Each parent represents 50% of L's gene pool. Children, moreover, learn about relationships between adults from their parents. In twenty years time it will not matter a row of beans whether or not L spent x or y hours more with one parent rather than the other: what will matter is the relationship which L has with her parents, and her capacity to understand and engage in mutually satisfying adult relationships. If she is given a distorted view of adult relationships by her parents, her own view of them will be distorted, and her own relationships with others – particularly with members of the opposite sex – will be damaged.

69. L must therefore be able to appreciate that even though her parents are separated, they have respect for each other. Most disputes about children following parental separation have nothing to do with the children concerned: they are about the parents fighting all over again the battles of the past, and seeking retribution for the supposed ills and injustices inflicted on them during the relationship. This case shows every sign of going that way.

70. The father and the mother share equal responsibility for this state of affairs, and the father in particular should not regard the outcome of this appeal as a victory: it is, in reality, a defeat for both parties, who have been unable to resolve their differences by sensible agreement. They are fortunate in having a daughter whom they both love and who loves them. Each must fully appreciate the role the other has to play in L's life, and the current hostility between them must cease. Otherwise, in my judgment, the emotional damage to L will be serious and lasting.

124. I resile from nothing which I said in Re T.  In the present case, however, I propose to express myself in similar terms, but more forcefully, I do so because, in my judgment, the damage in the present case has gone well beyond that foreseen in Re T. Indeed, as I read the papers in the instant appeal, and, in particular, the report and the oral evidence of Professor Zeitlin, and listened to the careful arguments addressed to us, I was powerfully reminded of the first four lines of Philip Larkin’s poem This be the Verse:

They fuck you up, your mum and dad.
They may not mean to, but they do.
They fill you with the faults they had
And add some extra, just for you.

125. The rest of the poem seems to me to say more about Philip Larkin himself than it does about the human condition, but these four lines seem to me to give a clear warning to parents who, post separation, continue to fight the battles of the past, and show each other no respect.

126. Separated parents, in my experience, frequently fail to understand that their children love both of them, and have loyalty to both. Such an attitude on the part of children is normally as it should be. The fact that one parent has come to hate the other, or that both hate each other is no reason for the child not to love both and have loyalty to both. It thus poses the most enormous difficulties for the children of separated parents when each parent vilifies the other, or makes it clear that he or she has no respect for the other.

127. CR’s parents have undoubtedly caused him serious harm by their ongoing, mutual dislike and recriminations. They need, accordingly, to ask themselves a series of hard questions. Why is it, that Professor Zeitlin, with his wealth of professional knowledge and experience  advised that consideration should be given to CR living with foster parents?  Why is it that the guardian, with her wealth of  different professional knowledge and experience, advised the judge that CR needed to be taken out of the arena? And why was it that that judge, with his wealth of humanitarian and  forensic skill accepted the guardian’s advice? If the parents are fundamentally honest, as I believe they are, the answers will not be far to seek.

128. This mother and father are no different from many separated parents who make the damage to their children caused by their separation much worse by continuing their battles against each other in legal proceedings. They have already caused CR serious harm. Our judgments offer them, with, I hope, the help of Professor Zeitlin, an opportunity to mitigate that damage. If they do not so, they may well lose the care of their child.

129. For all the reasons I have given, however, I would grant permission to appeal, allow the appeal and make the order set out in paragraph 3.

Lord Justice Wilson
130. I agree.
 

 


 


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