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G (A Child) [2005] EWCA 896

Grandparents' application for permission to appeal an order placing their granddaughter in the care of the Local Authority, whose care plan is that the child be placed for adoption. Permission granted.

Case No: B4/2005/0775

Neutral Citation Number: [2005] EWCA Civ 896

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM

His Honour Judge Altman

Royal Courts of Justice

Strand, London, WC2A 2LL

Thursday, 14th July 2005

Before :

LORD JUSTICE WARD

LORD JUSTICE KEENE

and

LORD JUSTICE LONGMORE

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Between :

G (A CHILD)

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(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

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Mr and Mrs G (Litigants in Person) Appellants

Mr A Hayden QC and Miss M Hughes (instructed by ) for the 3rd Appellant

Mr J Baker QC and Mr E Devereux (instructed by Buckinghamshire County Council) for the 1st , 2nd and 3rd Respondents

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Judgment

As Approved by the Court

Crown Copyright ©

Lord Justice Ward :

Introduction

1. This is an appeal by grandparents Mr and Mrs G supported by their daughter D against the order of His Honour Judge Altman made on 21st February 2005 in the Milton Keynes County Court whereby he placed their granddaughter H in the care of the local authority whose care plan is that she should be placed for adoption. He also dismissed their application for a residence and contact order in respect of H.

The Background

2. H was born on 28th February 2003 so she is just 2 years old. Her mother, D, is nearly 22 years of age. For a short while D lived with but never married H's father and they separated before H was born. The father is a party to the proceedings who now supports the local authority's case. He plays no part in the appeal.

3. D is Mr G's daughter by his former wife. She has a full brother, T, who is a year older. Mr G parted from his former wife in about 1990 when she went to live with Mr C to whom she is now married. The children stayed with him. There seem to have been endless problems about residence and contact to T and D and there was much involvement of the Social Services Department in the lives of these families. Eventually in 1995 a residence order was made in favour of Mrs C but even then the position was far from settled and the turmoil continued.

4. Mr G married his second wife a few years after the breakdown of his first marriage. She has a daughter by her previous marriage, C, about 2 years younger than D. Seemingly unbeknown to Mr and Mrs G, T was engaged in some sexual experimentation at first with his stepsister C and later with his sister D as well. It developed into an abusive relationship later admitted by T. That was not the end of D's problems: she was, she says, regularly sexually abused between the ages of about 8 and 14 by her stepfather, Mr C. Although she reported these complaints to the Social Services Department no effective action was taken, at least not for an unaccountably long time. Mr G complained to the Social Services Department about their lack of support. He protested when they proposed to remove her name from the At Risk register. Such was his hostility to the Department and to Mr and Mrs C that he was excluded from the Child Protection Conferences. He remains critical of their involvement in his family.

5. D was undoubtedly a troubled teenager. In July 1997 she was seen by the Berkshire Adolescent unit who concluded she was not suffering from a mental illness and was not in need of in-patient admission. She caused concern at school by attention-seeking misbehaviour. There was occasional tension between her and C. From time to time relations between Mr G and D were very poor indeed. She wrote to him sometime in 1998. I have not seen the letter. It must have been couched in hurtful terms. He replied with equal if not more vehemence. The flavour of this long letter can perhaps be encapsulated with a few excerpts:-

"What have you got now. You have let yourself go. Fat and ugly. You have got the attitude that you can get by in life. You say you can get a pass in your exams by hardly going to school and you will scrape by with a pass. … You look like you want to be just like your mother. What a waste of a person with your brains …

If that is what you really want, then get on with it. I am ashamed to call you my daughter. I would not give you house room if you were on the street. You appear to aspire to the sort of person I detest more than any other in this country. Low ability and scrounging. The sort of people that would turn a palace into a slum and when they did that they complain whilst getting yet another free handout from the state. Breeding more kids with the same low expectation, thugs, vandals, etc. To be unemployed and good for nothing. If that is the way you want to go, do so. Don't come crying to me when you are up the duff, with an abusive boyfriend and never the ability to have nice things. …

Or you can pull yourself together, see the world for what it is, put yourself on the proper track, accept the help and love offered to you for the right reasons and not the poison you are exposed to now and make your future the way you want for yourself. It is up to you. I will help you to do well or I will leave your mother to continue screwing you up the way she has started to do so well. Let me know what you decide!"

He says the letter was intended to give her a jolt and both now agree it had that effect though the scars of bitterness may remain. There was a rapprochement and in this court they stand united.

6. In her oral submissions to us Mrs G made an impassioned plea for family unity reminding us movingly that she was present at H's birth and that she and her husband are totally committed not only to H but also to D. Thus immediately after her discharge from hospital following H's birth, mother and daughter went to live with Mr and Mrs G and stayed with them until it was thought D was well enough to cope. In their care H thrived. Once, however, D was on her own the concerns about her ability to meet H's needs persisted and grew. She began to express thoughts of suicide and of harming H and she confessed to having shaken H roughly. In about July Mr and Mrs G stepped into the breach once more and assumed responsibility for H. Once again H thrived. During the ensuing months there was considerable Social Service intervention and support. Significantly the first Child Protection Review held on 5th November 2003 noted that the family had been working with everyone very well. At the end of November D moved into her own accommodation.

7. From then on matters deteriorated. On 19th January 2004 D told the social worker she could no longer cope with H and H was taken into care and placed with the foster parents with whom she has remained ever since. These care proceedings commenced. Mr and Mrs G intervened and applied for a residence order.

8. D's behaviour had been so erratic that she was referred for psychiatric assessment. Although, as briefly alluded to, she had in her troubled past seen members of mental health teams, this seems to have been the first time that a full assessment had been undertaken. Doctor Akomalafe, consultant psychiatrist, diagnosed her to be suffering from an emotional unstable personality disorder impulsive type but also a recurrent depressive disorder then in remission. He considered that with psychological support the long-term prognosis might be good. It is interesting to note that in his recording the history as being "a picture of some very fragmented family networks which have been supportive but intermittently so", "D herself reckons most of her problems arose at the time she was staying with her mother".

9. The guardian sought a further psychiatric report. Doctor van Velsen recorded a history in which D said that her mother was a "useless" person and mother, that her father was a "pretty useless" father but that Mrs G was "absolutely brilliant". She also said they had now "put the past behind them" and that father had been supportive to her recently. Doctor van Velsen did not consider D to be suffering from a depressive illness though she agreed she had a borderline personality disorder. "She has a long standing sensitivity to abandonment, precipitated particularly by her parents when they divorced". In her opinion:-

"[D] is somebody who could make use of treatment which would have to be of a psychological nature and to continue for several months. Unfortunately, in my view, it would not be within the time scale of her daughter. In my opinion [D] does pose a physical risk to H and I do not think it is going to be possible for her to consistently put H's needs above her own at the moment."

I have added the emphasis to make the point that treatment, which may or may not be the same as Doctor Akomalafe had in mind, was envisaged to take months, rather than years.

10. The local authority's plans were permanently to remove H from the family and little thought seems to have been given to the grandparents assuming the responsibility. Once they made their stand the focus of attention turned belatedly to them. The local authority arranged for an assessment of their parenting abilities by an independent social worker, Mrs Draper. I have not seen the letter of instruction that was given. They set this in train without the court's prior sanction contrary to proper practice. The letter of instruction was not produced until Mrs Draper was being cross-examined. It contains this slanted information which Mr Baker Q.C., who now appears for the Local Authority , did not seek to defend:-

"There is a lengthy chronology relating to the SSD's involvement with [D] as a child. This raises concerns regarding the maternal grandfather and step-mother's suitability to care for H on a permanent basis. Mr and Mrs G are aware of the allocated social worker's reservations and are still willing to be assessed. It is a possibility that after 1-2 visits a decision will be made to discontinue the assessment, based on the family history alone."

11. Mrs Draper reported that from the outset of the assessment she advised them that it would be very unusual to place a child with carers whose own children had been on the Child Protection Register. That may be true but she was not assessing prospective foster parents or adoptive parents: she was assessing grandparents. Moreover D was placed on the register as being at risk of sexual abuse from Mr C, and Mr G was being endlessly difficult in ensuring she remained there. It may not have a wholly fair point to hold those facts against him. She concluded that she could not make a positive recommendation that H be placed with them and identified "six key factors" that influenced her conclusion. Those factors were:-

i) Mr G's continuing to blame either the system or his ex-wife for all the difficulties within the family;

ii) Mr and Mrs G's deep rooted and longstanding antipathy towards Social Services and the court system which makes it difficult to envisage them working co-operatively with social workers to promote H's welfare;

iii) Their very negative view of D;

iv) H's being affected by that negative view;

v) Their lack of insight into their practising naturism;

vi) Their own lack of a support and network.

I must deal with these in detail in due course.

12. H's guardian at the time, Mr John Hoffman, was critical of that piece of work reporting:-

"It seems therefore that Mrs Draper's conclusions espouses a threshold for "good enough parenting" far higher than that shared by the child protection process."

13. Perhaps because of that criticism Mrs Draper reviewed her assessment but confirmed her original conclusions. She said:-

"In explaining to the couple how I had reached the conclusions in my statement I was left in no doubt that the issues, which gave me the greatest concern, that of not taking any responsibility for their own actions preferring to blame others and holding a negative view of D had not changed."

The hearing.

14. The hearing lasted 6 days spread over 6 weeks, the evidence being concluded on Tuesday 15th February. For personal reasons beyond their control, Mr Hoffman had had to withdraw and was replaced by Mrs Parr and the leading social worker was unable to give evidence. Except for the grandparents, all parties were legally represented, even H's father whose position was as the judge said "essentially simply to echo that of the Local Authority and Guardian." He said:-

"This to me represents a gross inequality of representation that can only be stark and very troubling. It forms a part of my conclusion that, whilst I must, as I do, try this case on the evidence and reach a conclusion on the balance of probabilities, I am left without that extra degree of certainty that I sense I would have had if this case had been presented with legal representation."

The judgment.

15. Judgment was delivered ex tempore on 21st February, 6 days after the hearing had concluded. Judge Altman is an experienced judge. It must be assumed that he had given himself enough time to marshal his thoughts, plan the structure of his judgment and collate the reasons which would explain his decision. If, as can happen in over-stretched busy courts, a judge comes under too much pressure of time, he must if need be take more time and adjourn his judgment until he is ready. Not to do so is unfair on him and on the litigants. Here Judge Altman was confronted with what he said to be "the most difficult of cases and in many respects a very puzzling one". I can sense that he was very troubled by it, saying that the grandparents' case had given him "very great cause for thought" and he has my sympathy. He was, as he said, left without "that extra degree of certainty" and his conclusion somewhat hesitantly expressed was that the grandparents' case was "probably wishful thinking" and that they were "probably confronting the impossible," with the emphasis added by me. It was a bitterly disappointing result for the grandparents to hear and they were too upset to apply themselves for permission to appeal. D's counsel did so on their behalf. We have no transcript of her application but she recollects submitting, with the difficulty one always has just after hearing a lengthy judgment now transcribed over 24 pages, that the judge's findings, or perhaps the lack of them, did not justify his conclusion. Permission was refused but I think the judge must have been or become aware of the deficiencies in his judgment because the following day he telephoned the guardian's solicitors with the request that they pass on a message to the other parties. It was this:-

"He [the judge] has said that he is alive to the fact that there were issues that he did not deal with in his judgment. He has therefore requested that if there are any particular issues that anyone wishes him to deal with specifically then would you please let us know within the next 14 days of any specific matters upon which you would seek additional reasons so that these can then be relayed to the judge. Judge Altman has indicated he would then provide reasons. He has asked us to refer you to Re B (Appeal: Lack of Reasons] [2003] EWCA Civ 881 which is also reported at [2003] 2 FLR 1035. We annex the Lawtel summary."

16. The matter was then listed, I think at the court's own motion, for the judge to provide any such further reasons as might be identified and the grandparents were directed to file a list of omissions from the findings that they wished the court to reconsider. The grandparents did not attend at that further hearing. No one asked for clarification. No further reasons were given. This troubled me when dealing with the renewed application for permission to appeal. On the hearing on notice the respondents, I asked whether anyone wished to pursue the matter. Nobody did. Nobody wanted to go back to the judge to ascertain what was in his mind. I concluded that if the parties did not want it, then the Court of Appeal would deal with the judgment as it was and that is what I now propose to do.

17. The real issue for us is to consider whether this judgment as it stands meets the "essential test" identified by Thorpe L.J. in re B at paragraph 11, namely:-

"does the judgment sufficiently explain what the judge has found and what he has concluded as well as the process of reasoning by which he has arrived at his findings, and then his conclusions?"

The disappointed party is entitled to know why he has lost.

My analysis of the judgment.

18. The crux of the case comes on page 21 of the transcript of the judgment when the judge said:-

"I have considered very carefully the arguments presented by Mr and Mrs G. They have given me, and everyone I imagine, very great cause for thought. Not only have they expressed their position but they have subjected the evidence in the case to very careful analysis. But at the end of the day it seems to me a judgment has to be made."

What follows can, therefore, be taken to be that judgment.

19. This is it:-

"The case is presented by Mr and Mrs G on the basis that now everything is satisfactory, and they have a household in which there is room for a single child to grow, untroubled by others claiming rivalry or perhaps being involved sexually with her. The Mother will co-operate and fit in with any pattern that may follow, that Mrs C with the possible lead-in to a very abusive situation, can be kept at arm's length. She gave evidence that she would co-operate. It paints a picture of an environment in which, if it is correct, H could live a fulfilled and happy childhood.

But looking at all the evidence in this case and noting that that is the way the case has been presented in this court, I am driven to conclude that it is probably wishful thinking.

I am driven to the conclusion that this is not a case where grandparents step in and demonstrate that they themselves can exhibit a history of good and successful parenting. Sometimes there are cases in which someone in a position like the Mother suffers from an illness which prevents her looking after her child and the grandparents can step in and say that they will deal with it. But those are generally cases in my experience where that is an isolated consideration. Here the position is far more complicated. The prospect of the Mother's complying with the grandparents having her child is very unlikely, bearing in mind that the nature of her illness is to have its ups and downs, and at times of downs she is not the mistress of her feelings and her attitude. I did not see in Mrs C as a real partner for Mr and Mrs G in co-operation and compliance. I interpret her evidence as someone who has developed a technique of shutting the door on reality and simply papering over the cracks in order to explain things to herself.

In those circumstances" [I add the emphasis] "I am driven most regretfully to the conclusion that the reality is that, genuine and deeply felt as the [grandparents'] offer is, they are probably confronting the impossible. They have great love for their daughter, as I say, I differ to that extent from Mrs Draper, because the evidence, I believe, has moved on since the diagnosis of Doctor van Velsen. In the reality of day to day life it could not be a question of: "Well, we will look after H and we will not look after the Mother". But there are complicated family situations in which there are overlaps of attention to one another, and day to day, week after week, the balance cannot really be struck in a way that leaves everyone sure that Mr and Mrs G will provide protection and a risk-free environment for the child. I perhaps have dealt at length, possibly too much length, on these considerations, but there has been a lot of criticism of Mr and Mrs G for their attitudes, and the reasoning that I have expressed as leading to my conclusion is not based on all those criticisms. …

As I have said, the issue in this case has been what is called "disposal". The local authority care plan, supported by the guardian, seems to me to be consistent with all the expert evidence in this case, and for the reasons I have given I consider that it should be endorsed."

20. Upon analysis it seems to me that three factors drove the conclusion that the grandparents' case was wishful thinking. The first is that they could not demonstrate they could exhibit a history of good and successful parenting. Secondly the prospect of the mother's complying with their having her child was very unlikely. Thirdly the judge did not view Mrs C as a real partner for them. It was "in those circumstances", the words I emphasise because they mean "for those reasons", that the judge was driven to his reluctant conclusion that they were probably confronting the impossible.

21. Let me deal with his first reason that the grandparents cannot exhibit a history of good and successful parenting. That conclusion seems to me to be quite contrary to his earlier finding. On page 3 he said this:-

"The case has involved to a large extent an examination of the position of the grandparents in being able to offer a home. This has been viewed in the light of the way in which their own children grew up. There has been much emphasis upon this. A problem which I sympathise over with the grandparents is that many, many allegations have been made about their approach to parenting over the years but they emphasise that they have had great difficulty and have great difficulty in being able to prove their innocence of this. Much of the material is from unreliable sources and contradictory. That has been my difficulty to an extent as well. Nonetheless, the fact remains that three children grew up in their household (and sometimes not in their household) disturbed, and in a way that I am sure they and anyone else would wish had not happened. This court has not engaged or been asked to engage on any fact finding exercise in relation to that history. "

22. I struggle to understand how if the court had not engaged on that fact finding exercise he could base his conclusion upon just such a finding. I am not even sure how he could suggest the court had not been asked to engage on that exercise given that he was saying on page 6:-

"The stance of the experts and local authority has been that the history dictates the future."

23. Moreover at page 12 he said this:-

"I do not know where the truth lies in all this history. But I cannot find any positive endorsement of the proposition that Mr and Mrs G can demonstrate a history of successful and good parenting. I have not come to a finding that they were specifically deficient in any particular way, but the puzzle I had at the outset of this case is supported by the very fact that three children grew up in their household who were upset and disturbed. If it be that that disturbance was caused within the C household in a period when they had care of the children, that that household is proposed to be, even to a reduced extent, and even if confined to contact with Mrs C, part of an on going family background leaves me very troubled."

24. There were several observations to make about that passage. If he did not know where the truth lay in all that history then the local authority had failed in the burden of proof which was upon them to prove matters which supported their case that the proper order to make was a care order. He seemed to be reversing the burden of proof. Furthermore, there was scant evidence, if any at all, that all three children in that household were disturbed. T had his sexual problems as an adolescent but we know little else about him. Stepsister C may have had some learning disability but there is nothing to suggest that she is at all disturbed. D herself undoubtedly led a troubled life suffering as she did from the breakdown of her parents' marriage. If the reasons for her personality disorder can be laid at the door of either or both parents – and there is no medical evidence about the aetiology of this condition – then not a great deal of substance is proved against the father and the much more questionable behaviour relates to what happened in her mother's home.

25. D had at times alleged that her father had been physically violent to her. She also alleged he had sexually abused her. As to his alleged aggressive and violent behaviour the judge found that "it is quite impossible at this point in time to make any judgment whatsoever": see page 8. Of the allegations of sexual abuse he held on page 12 that whether that was pure invention or whether it was true was "not penetrable". Neither of these matters were relied on by the local authority by the time their closing submissions were made.

26. The other aspect of the history which had caused concern was the failure of Mr and Mrs G to protect the children from sexual abuse and the lack of appropriate sexual boundaries. In their closing submissions the local authority did not pursue findings on those matters.

27. The chronology I have seen reveals D complaining of her stepfather's indecent touching of her. Not a great deal seems to have been done about it. The judge heard Mrs C on some of these matters. He found her "a most unimpressive witness". He was critical of her for never expressing any anxiety about D's allegations "and indeed joining in due course with Mr C in attributing any responsibility for anything untoward to the mother, as her being the leading force in relations with Mr C". It seems likely that part of Mr G's antipathy towards the local authority was their failure properly to respond to D's complaints of what was happening to her in her mother's home.

28. The local authority invited the judge to make a finding that Mr G caused his children emotional harm. He did not do so. In so far as he dealt with this at all, he limited his observations to the 1998 letter.

"As this case has proceeded I have understood the letter Mr G wrote in 1998 a little better. If a child says to a parent hateful things, it is very difficult to do anything other than take them at face value and seriously, particularly in the absence of any medical advice to the effect it is the illness speaking, not the daughter. I can understand as we look with the benefit of hindsight and now know the Mother was having medical difficulties that the context of that letter was in the absence of any such knowledge that the Mother's behaviour had any explanation other than her own attitude and personality. So it seems one can perhaps be a little harsh in judging the way in which that letter was written. The information we now have as to the mother's condition may well inform, it seems to me , the extent to which Mr and Mrs G 's previous negative views of the Mother may be changed."

29. At the end of all of this I am left wondering what is left of the case that the grandparents cannot demonstrate a history of good and successful parenting. True it is that D now has her problems. True also that the children of this divorced couple lived through unhappy times but whilst it may be easy to say they were not auspiciously successful parents, that is not enough and it is difficult to see any clear and satisfactory finding of precisely what they did wrong and how they failed.

30. The judge's second main reason was the unlikelihood of D accepting that her parents should have the care of her child bearing in mind the nature of her illness with its propensity "to have its ups and downs". Doctor van Velsen was not required by the joint instructions she was given to consider this and consequently her report is silent on the question. The judge did make a finding at page 14 based on her oral evidence that Doctor van Velsen said there is a danger that the mother would become jealous of the care and attention given to H and may then challenge the grandparents. There is no analysis of the extent of that danger nor how it could be contained, especially with help from the Social Services Department. If D was living with the grandparents the Social Services Department would be bound to provide such help and assistance and whilst, therefore, the risk of the placement becoming unstable is one for the judge to bear in mind, it does not appear to me to be one at the centre of the Local Authority's concerns as they assessed Mother and grandparents. There was no real investigation of the grandparents' ability to withstand any such disruptive behaviour from D. It is not at all clear whether the recommended psychological treatment would enable D more easily to contain any jealous impulses.

31. The third factor was that Mrs C could not be "a real partner" in the upbringing of this child. I did not understand that she was being put forward as such. There was not a great deal of love lost between Mr G and Mrs C. Mr C was certainly most unwelcome in the G household and seems unlikely to be allowed to cross the threshold. The danger he posed to young girls was likely to be contained by Mr and Mrs G who would ensure he had no contact. Mrs G explained to us that they are now on better terms with Mrs C and called her to show a united family front to keep H within the family but very much within their family unit. So I cannot quite see how this is a factor of such great importance.

32. If one looks earlier in the judgment the judge dealt, as he had to, with the assessment of the grandparents by Sheila Draper. He concluded:

"I can understand Mr and Mrs G are now seeking to find some explanation, than the assessment itself, for the negative conclusions of Mrs Draper, but I can find none. She was conscientious and is a very experienced social worker who produced a reasoned and careful analysis, and came to the conclusion that she did. The only extent to which in a very modest way I would query her conclusion is whether or not the negative view of the mother, which was expressed in earlier days, is still such a prevalent one on the part of the grandparents in this case." [The emphasis was added by me].

33. The question which arises is whether the judge has subjected Mrs Draper's report to proper critical scrutiny. I must, therefore, look at her six factors. The first is their blaming either the system or Mrs C for all the difficulties within the family. It will be recalled that in her second report she reiterated one of her greatest concerns to be their not taking responsibility for their own actions preferring to blame others. The judge addressed this on page 4 saying:-

"It is suggested that they have been hostile to the local authority, demonstrated unwarranted criticism and therefore an inability to work with them. I ask myself: how much is that the Gs as grandparents or the Gs as people managing the litigation and trying to find a way to confront the evidence that is against them? I am quite sure that, as most lay people would, when faced with a mountain of evidence against them, they seek to criticise it and find fault with it and resist it. The ability to draw a line between what is to do with their parenting and what to do with them as litigators is impossible to draw."

34. On this topic Mrs Parr questioned the motivation of the grandparents in pursuing their application but the judge expressly disagreed with her saying:-

"It has been suggested by Mrs Parr that part of Mr G's motivation for these proceedings has been to use them and the application as a means of getting back at the local authority. She has instanced her sense of that in the hostility that from time to time plainly Mr and to a lesser extent Mrs G have displayed to the local authority. There does not seem to me to be evidential support for that conclusion, because there are so many other explanations, not least being the position that the [grandparents] occupy as having to mount their own case. I am satisfied that the [grandparents] participated in these proceedings only because of their love for their granddaughter and their desire to struggle to do what they possibly can to enable their grandchild to grow up within their family."

35. As to her second reason being their inability to co-operate with the social workers to promote H's welfare, no reference is made to what I would have thought was an important factor, namely, the fact that for the seven or so months when D and H lived with Mr and Mrs G the child thrived and moreover as Mr Hoffman, the guardian at the time noted "all family members are reported to have worked well with the professionals involved". He was able to point out that the reason for the difficult relationship between the local authority and Mr and Mrs G is "a complex one". He reported:-

"5.19 The local authority file suggests that, at times, the local authority has accepted that their involvement may not have been as it could have been. Unfortunately, Mrs Draper has not addressed this aspect of the context, in so doing there is the appearance of a lack of balance. Sadly, this, in turn, fuels Mr G's view that it is the local authority who struggles to work with him.

5.20 It cannot be denied that, arguably, one of the most distress free periods in H's life could well be the period when Mr and Mrs G had the primary responsibility to ensure that she was safely kept. The documents filed by the local authority appear to support the view that the household, including Mr and Mrs G, worked well with all the professionals involved while H was on the Child Protection Register, furthermore, and perhaps of greatest import, H appeared to thrive.

5.21 The then difficulties between D and Mr and Mrs G were not accorded the high level of concern that now appears to be assigned to them.

5.22 Looking at the local authority's actions, at the time, one has to question very carefully indeed whether they would have initiated proceedings had D decided to place H in her father and step-mother's care, as opposed to having sought foster care."

36. Mr and Mrs G strongly make the point that recent history might be a more accurate prediction of the future, or at least it ought not to be overlooked. It does not appear to me to have been given weight by the judge.

37. Mrs Draper's third factor was the negative view the grandparents held of the mother. This was her other great concern. The judge expressly differed. He rejected her opinion considering that Mrs Draper was perhaps "a little too harsh in judging the way in which that letter [of 1998] was written". He recorded and seemed to accept "the most loving evidence given by Mr and Mrs G :"We love her and want to do the best for her and H"." In addition he felt that:-

"The information we now have as to the mother's condition may well inform, it seems to me, the extent to which Mr and Mrs G's previous negative views of the mother may be changed."

38. The fourth point taken by Mrs Draper was that the grandparents' negative views of the mother might be transferred to the child leading to a dysfunctional upbringing. If, however, the grandparents are not negatively but sympathetically disposed towards D, then that point disappears. Mr Hoffman made this point which it seems to me has its force:-

"5.38 Whilst I accept that D has changed her position regarding whether she would support her father and step-mother as full-time carers for H, it is not clear why the social worker emphasises only D's wish for her father and step-mother not to be considered. Both of D's statements support her father and step-mother as alternative carers."

39. D appears in this appeal by leading counsel, Mr Hayden Q.C., to support the grandparents' application and Mrs Draper's pessimism may, therefore, need to be tempered.

40. The fifth point made by Mrs Draper was that Mr and Mrs G "lacked insight into how their preference for nudity could affect a developing adolescent. In her view "neither of them was prepared to reflect on this for the future and could see no potential connection with unclear boundaries and the sexual abuse of D and C. Quite the contrary view was expressed in the report from the Vane Foundation enquiring into the grandparents' understanding of the risks of sexual abuse and the need to protect the children in their care. Mrs Gregory reported at paragraph 78:-

"They did not hesitate to say that they were not committed naturists and that henceforward most especially if H were in their care would not go around naked. They would adhere to appropriate boundaries especially in the interests of risk management. I am of the view they will abide by appropriate body covering in the future."

41. The judge agreed. He held at page 16:-

"Sheila Draper came to a conclusion about one feature that I have discounted, which is an interest in, which she described as a commitment to naturism, on the part of Mr and Mrs G. There has been a degree of physical openness in the household and with an interest in naturism on the part of Mr and Mrs G, but I accept their evidence that it is something that they can discard as easily as pick up, and they accept the evidence that in fact it is thought in this particular context to be inappropriate. I accept Mrs G's evidence that they have adopted a more modest approach, even in their own household, to nakedness."

42. Mrs Draper's final factor was the lack of a main support network finding that that network consisted only of members of the family who were equally dependent upon Mr and Mrs G. That was not the view of Mrs Parr the guardian. She concluded:-

"9.6 Mr and Mrs G have a substantial support network. This is reflected in the number of letters that have been submitted in support of their application attached to [their] statement."

43. It seems to me that very little support for Mrs Draper's opinion remains. The judge seems to me to discount both her main concerns. He expressly differed in two respects not just as to the negativity of their views of D but also as to their going around the house naked. There is little support for the other four justifications for her rejection of the grandparents.

The Local Authority's case

44. Mr Baker submits that the crux of the judgment lies in the penultimate paragraph I quoted in paragraph 18 above where the judge says that "in those circumstances" he was most regretfully driven to conclude that the grandparents were confronting the impossible. He felt that because there are complicated family situations, "the balance cannot really be struck in a way that leaves everyone sure that Mr and Mrs G will provide protection and a risk-free environment for the child." He submits that the essential finding is that the grandparents cannot be trusted to resist disruption of the placement by D.

Conclusions.

45. I cannot accept that submission despite the measured and therefore cogent way Mr Baker has argued his case in the face of acknowledged shortcomings in the judgment as a whole. By his introducing that paragraph with the words which I have emphasised before - "In those circumstances " - the judge was affirming that it was for the three reasons set out in the preceding paragraph that he was driven to his unhappy conclusion. The risk of disruption was but one of them. When he spoke of the "balance" not really being able to be struck, I am not sure what factors he was weighing in his balance. The right of the child to grow up in her own family is surely a crucial factor but it receives scant if any recognition. He does not identify what protection cannot be provided nor from whom nor against what. It is all rather too Delphic. It fails the Thorpe L.J. test because I cannot confidently understand the process of reasoning by which the judge has arrived at the essential findings of fact, nor exactly what facts he is placing in the scales of judgment. In such an important a matter as the permanent removal of a child from her family fairness not least to the child demands more clarity of reasoning than Judge Altman gave in this case. I remain genuinely puzzled as to why and how he decided as he did. I am inclined to think there is force in Mr Baker's point that out of kindness to the grandparents he was striving, as Mr Baker puts it, to let them down lightly but sympathy does not absolve him from making harsh findings where necessary and spelling out the consequences explicitly. I would allow the appeal for the inadequacy of the fact finding and reasoning.

46. That is not the only reason why I would allow the appeal. I am acutely conscious of the deference this court must pay the trial judge especially where he has had such a unique opportunity to assess the main protagonists in his court. Here, however, it seems to me for the reasons I have given that the judge's main conclusion that the grandparents' poor parenting made them an unacceptable risk as carers for H is directly in conflict with his findings that he could not decide the extent to which their care of the three children in their household did fall below an acceptable standard. This undermines one of the three central findings upon which his conclusion is based. Moreover, when he came to apply Mrs Draper's six tests he said he accepted her report save only to the extent "to which in a very modest way I would query her conclusion [as to] whether or not the negative view of the mother, which was expressed in earlier days, is still such a prevalent one on the part of the grandparents in this case". That was not the only way in which he expressly disagreed with her. He disagreed with her about the practice of naturism. Both of her serious concerns seem to me to be undermined by his differing assessment. There was therefore only the most dubious support for her views on a critical part of the case. The grandparents not surprisingly feel they been unfairly assessed.

47. I would therefore allow the appeal. This is not a case where we can possibly come to our own conclusion and regrettable though it is that H will suffer from the further delay of a rehearing, it is better that the matter be reconsidered by a judge of the High Court and I would so remit it. I would be grateful for further help from counsel - and I pay tribute to help both have given us – and would ask them to agree if possible what directions we can give for further assessments of the grandparents and the mother and what agreement they can reach to limit the issues that will need to tried on the rehearing.

Lord Justice Keene :

48. I agree.

Lord Justice Longmore :

49. I also agree.