username

password

Hind Courtimage of 4 Paper Buildings logo1 Garden CourtCafcass advertGarden CourtDNA LegalCoram ChambersHarcourt Chamberssite by Zehuti

Home > Judgments > 2012 archive

B (A Child) [2012] EWCA Civ 737

Appeal by paternal grandmother against a refusal of leave that she be joined as a party in care proceedings. Appeal dismissed.

A paternal grandmother of J, a 4½ year old boy, applied to become a party to care proceedings, the first step in her application to look after J. 

J's mother was 21 at the time of the hearing and alleged that she had shared a bedroom, having a permitted sexual relationship with J's father at the grandmother's house, when she was just 13. She also alleged that the grandmother signed consent forms for M to have a termination at the age of 14. 

After M and F had moved out of her house with J, the grandmother's case was that she had overnight contact with J for several nights per week for a period. However, such contact as there was had definitely ended by October 2009, and in November 2010, the grandmother had issued a private law application for contact with J. 

In July 2011, the local authority were directed to file a s.37 report on the family. The report recorded that neither parent wished for J to be cared for by the grandmother, making allegations, supported in some instances by the grandmother's daughter, that she drank excessively, was aggressive and violent and not child-focused. The report also recorded that the grandmother denied many of these allegations and explained that her alcohol consumption was related to her mother's death and ended in April 2011. The report concluded that it could not comment on whether J was likely to suffer significant harm in the grandmother's care without further assessments of her alcohol use but for the time being it was not recommended that J be placed in her care. Contact was not recommended so as not to risk confusing J any further. 

Shortly after this report, care proceedings were issued, to which, in November 2011, the grandmother applied to become party. The joint response to this application was that there should be a preliminary assessment of the grandmother prepared by the local authority. The assessment repeated the various alleged concerns about the grandmother and recommended that there could be a psychological assessment of her together with alcohol testing. It concluded that until such work was done it was not possible to draw conclusions regarding her ability to care for J. 

When the matter came before Judge Raeside at Brighton County Court, the grandmother had recently started having contact arranged by the local authority. All parties to the proceedings opposed the application, which it was generally agreed could proceed by way of consideration of the provisions of s.10(9) Children Act 1989. Submissions were made, with no evidence given, on the basis of which the judge refused the application. She considered the prospects of a successful outcome for the grandmother as very slim. 

The grandmother appealed, stating that the judge had been wrong to conclude that the s.37 report and the viability assessment had been negative (rather that they had been inconclusive and recommending further assessment), and that this had led her wrongly to conclude that the prospects of success were so slim that the application should not be allowed to proceed. 

Black LJ, giving the leading judgment of the Court of Appeal, considered that in the absence of guidance in the Children Act 1989 or the Family Procedure Rules 2010 specifically assisting as to the approach that should be taken to joinder, it was appropriate to consider s.10(9). She attempted to summarise the position reached by case law. She considered that s.10(9) did not contain a test, but picked out some factors to which the court should have particular regard while acknowledging that there may be others. These factors would vary from case to case. One amongst them would plainly be the prospects of success of the proposed application, with leave not given for an application that is not arguable, but with an arguable case not necessarily entitling the applicant to leave.

Black LJ did not consider the judge had been wrong in her conclusion that there were, even allowing for the matters which the grandmother contested, significant concerns about the grandmother, nor in her conclusion that further assessments had been put forward as possibilities rather than as recommendations. She considered that the judge was entitled to describe the reports as being unfavourable. The fact that the local authority had arranged contact should not, in her view, be considered a significant indicator of its view of the grandmother's case to be a carer. She dismissed the appeal.

Summary by Gillon Cameron, barrister, 14 Gray's Inn Square
_____________________________

Neutral Citation Number: [2012] EWCA Civ 737
Case No: B4/2012/0871
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
HER HONOUR JUDGE RAESIDE
UR11C00108
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 31/05/2012
Before :

LORD JUSTICE LAWS
and
LADY JUSTICE BLACK
- - - - - - - - - - - - - - - - - - - - -

Between :

B (A child) 

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Miss Dinah Loeb (instructed by Fitzhugh Gates Solicitors) for the Appellant
Deborah Shield (instructed by East Sussex County Council for the First Respondent, Holden and Co for the Second Respondent mother, WMC Legal LLP for the Third  Respondent father and Harney and Wells for the Fourth Respondent child))

Hearing dates : 17th May 2012
- - - - - - - - - - - - - - - - - - - - -
Judgment
 
Black LJ:
1. This appeal concerns J who is 4 ½ years old, having been born in November 2007. He came into local authority care on a voluntary basis in June 2011 and has been living with foster parents since then. The local authority (LA) began care proceedings in relation to him in September 2011. The respondents to the care proceedings are J's parents and J himself, through his guardian.

2. J's grandmother (PGM) wishes to look after him. On 26 March 2012, Judge Raeside refused her application to become a party to the care proceedings as a first step towards that. This is her appeal against that decision, brought with permission from McFarlane LJ.

3. It is unfortunate that we have had to manage with only a note of the judgment given by Judge Raeside. A transcript was apparently requested but did not materialise in time for the appeal which is regrettable given that nearly two months have elapsed since the hearing which should have been ample time for a transcript to be prepared. The note of judgment was agreed between counsel but was not submitted to the judge to be approved as it should have been. Although in many ways a very good note, it is lacking in that it indicates that the judge quoted passages from documents in the court bundle but does not indicate precisely which passages. I was only prepared to proceed on the basis of it because it was necessary to determine the appeal urgently so that the proceedings in relation to J are not held up.

4. I will give a relatively brief history of events in J's family and of the proceedings that have been brought in court about him. Inevitably given the context in which this appeal arises, there remains debate and confusion about some of this history and perfect certainty and clarity will not be possible.

5. J's father (F) is the son of PGM. F is 8 years older than J's mother (M) who was born in February 1991 and is even now only 21. It appears that F met M when she was in her early teens and through him, M and PGM met. M was homeless and moved into PGM's home where she was looked after by PGM. M alleges that she shared a bedroom with F at the property, having a sexual relationship with him when she was 13 years old, and that PGM was aware of that and permitted it; PGM denies this and says that F was not living there at the time. PGM also denies M's account that she, PGM, signed the consent forms for M to have a termination when she became pregnant in August 2005 at the age of 14.

6. When J was born in 2007, M and F moved to their own accommodation. There is a dispute between them and PGM as to whether M allowed J to be cared for by PGM thereafter. PGM's case is that for a period she looked after J overnight for several nights a week. However, from the statement that PGM made in March 2011 in support of her proposed application for contact with J, it appears that whatever contact there was had ended by the beginning of October 2009.

7. PGM launched her proposed application for contact with J in November 2010. The proceedings were private law proceedings as the care proceedings were not yet on foot. They were commenced in the Family Proceedings Court. M was the respondent. Leave was required for the application to proceed and it was a considerable time before this was finally resolved. It seems that initially leave was given on the papers but that M then objected and it was revoked. On 10 June 2011, when there was due to be a contested hearing to determine whether leave should be granted, the parents did not attend court and leave was granted to PGM to apply for both contact and residence. The order records in a preamble that M had given permission for PGM to care for J overnight.

8. On the same day, LA was directed to file a section 37 report by 8 July 2011. The resulting report can be found in the appeal bundle in a version which is undated but apparently dates from about 12 July 2011. I shall need to quote passages from this report and the later viability report and in so doing I intend to substitute initials for the names in the reports without cluttering the quotations with square brackets to indicate that this has occurred.

9. The section 37 report contained information about J and his needs. It said that he had "experienced instability and domestic violence throughout his life" and that he had had "multiple carers for short periods of time which has impacted upon his attachment style and identity". It said that he needed "a stable home environment and ….to experience care that is nurturing and encouraging". It also referred to unresolved health difficulties that he had which continued to need medical attention, to delay in his speech and language, and to an issue about his social abilities because of his limited interactions with other children. 

10. The report recorded that neither parent wished for J to be cared for by PGM and that they considered that he would be likely to suffer significant harm in her care. It detailed various allegations made by M and F, and some made by PGM's daughter CB, about PGM's conduct whilst they were living in her care. It is important to record immediately that PGM disputes many of these allegations and that they have not been tested by the giving of oral evidence. They included the allegation that PGM drank excessively, that she was aggressive and violent, that food cupboards were locked, and that F was not allowed into the house when he returned from school and would have to wait outside for up to 3 hours.

11. The author of the report spoke to PGM about the allegations and recorded (B30) that she:

"denies that she drank alcohol during her children's childhood and [says] that she only began to abuse alcohol after her mother's death and when [her partner] KR left her. She states that she drank excessively with her partner GT. This relationship was violent and volatile. Police were called to this address on several occasions. PGM states that she has not drunk alcohol since she asked her partner GT to leave in April 2011."

12. At a number of points in the report, there is reference to the question of further assessment of PGM. At paragraph 5(c) (B28) the author said:

"Should the Local Authority deem it appropriate to initiate Care proceedings then PGM could be made party to the proceedings and undergo the relevant assessments which could inform the Courts Final Care Plan for J."

and at paragraph 5(f) (B31):

"The Local Authority cannot comment on whether J is likely to suffer significant harm under PGM's care without further assessment of her alcohol use, however, by the reports obtained from her children and M the Local Authority would not currently recommend that J be placed under PGM's care without further assessments. By the virtue [sic] that both her children have reported childhood abuse and their insistence that J is likely to suffer significant harm under PGM's care, the Local Authority would not at this time deem it in J's best interests to be cared for by PGM or indeed have unsupervised contact with her."

Paragraph 6 reverts to the question as follows (B31):

"6.3 It appears from information gathered that PGM has not been able to sustain positive relationships with her extended family and her own two children [who] reported that they experienced abuse under PGM's care and showed deep concern in her application for residency of J. PGM denies that she drank excessively whilst her own children were growing up and shows little understanding as to why her own children do not speak to her any more."

6.4 PGM is currently single but has a history of forming relationships with males who are violent or drink alcohol excessively. She reported that she has been unlucky with her choice of partners in her life, however, showed little reflection on the relationship patterns she has formed. …

6.6 Although Children Services have little evidence to support F, CB, and M's claims against PGM, their reports do raise serious concerns in respect to PGM's application to the Court to provide care for J.

13. The final section of the report, entitled "Recommendations", reads:

"7.1 In regard to PGM's application for Residency of J it is the Local Authority's view that further assessments such as psychological, psychiatric and alcohol testing would need to be undertaken on PGM to establish whether she is able to provide J with appropriate care and a safe home environment.

7.2 In regard to PGM's application to the Courts for a Contact Order, it is the Local Authority's view that contact between PGM and J would need to be supervised and be in J's best interests. The Local Authority does not want to confuse J any further by introducing contact with PGM at this stage."

14. Ms Loeb on behalf of PGM told us that following the filing of the report, there was a hearing in the Family Proceedings Court in the private law proceedings at which LA was represented although not a party, and that at that hearing, LA supported there being assessments in accordance with the report but declined to pay any of the costs, which it suggested should be met through PGM's public funding. As that was not agreed, a further hearing was listed to deal with the question but the proceedings were subsequently transferred to the county court on the basis of complexity, the care proceedings were begun, and it seems that concentration turned from the private law proceedings to the care proceedings and PGM's application to become a party to them which was issued on 3 November 2011.

15. It seems that the initial response to that application to become a party was an agreement by all parties that there should be a preliminary (or "viability") assessment of PGM prepared by LA by 16 December 2011. The assessment produced is entitled "Interim assessment report for relatives/friends wishing to care for child/ren". Unhelpfully, it is undated and no author has appended his or her name to it. It reflects the allegations made in the earlier report about PGM and contains further information about her, to some aspects of which I will refer later. It seems that the author had access to material from the police and from the social work file as well as from discussion with PGM herself. 

16. The author of the report identified a number of concerns about PGM. These included concerns about her use of alcohol, her ability to protect M from the risk of sexual harm given the allegations about M's sexual relationship with F whilst she was a young teenager being cared for by PGM, her level of honesty with professionals, the problems in her relationships with her own children and with M, and her violent and aggressive relationships with partners. The author identified areas which required further assessment and also issues that needed to be addressed including "relationship issues within the family" and in particular the "acrimonious relationship" between the parents and PGM in relation to which "a great deal of work would need to be done with all parties" (C6). The author also commented further on J's needs, saying that he would need a living "environment which is free from adults engaging in ongoing violence, aggression and frequent heated squabbles, particularly given his previous experiences" (C7).

17. The report ended:

"Further work and assessment will need to be undertaken with PGM to ensure that she is able to care for J appropriately and meet his needs.

Conclusion
I recommend that prior to any assessment by the family plus services, PGM should have a psychological assessment in order to ascertain her view on what has happened in the past and the impact that this has had on her relationships with her son, daughter, and with M. It should also assess her ability to be honest with professionals and make any necessary changes to her lifestyle and attitude required to care J appropriately [sic]. In addition, I recommend that PGM undertakes an assessment relating to her alcohol use past and present to include alcohol testing.

It is my assessment that until the aforementioned work is undertaken with PGM it is not possible to draw conclusions regarding her ability to care for J in the long term."

18. This was the material available to Judge Raeside when, on 26 March 2012, she considered PGM's application to be joined as a party to the care proceedings. There was also a statement each from M and PGM dating from March 2011 and in addition the judge was aware that PGM had started having contact with J again, organised by LA. This commenced last year and is continuing. We were told by Ms Loeb that M was against it and that part of the motivation for the issue of care proceedings was LA's wish to ensure that it took place. A further piece of evidence before the judge was an analysis of PGM's liver function prepared from a sample produced in May 2011; the results demonstrated normal levels and were said to "provide no indication of recent excessive alcohol consumption".

19. All parties to the care proceedings opposed PGM's application. The hearing took the form of submissions. It does not appear that the judge was asked to hear oral evidence but, as her judgment reveals, she undoubtedly recognised that there was a significant amount of dispute about the family history and about how PGM had conducted herself and that the disputed allegations were as yet untested.

The arguments advanced in support of the appeal
20. It was submitted on behalf of PGM that the judge either adopted the wrong approach to the issue of whether PGM should be joined as a party or, if she set about her determination in the right way, arrived at an answer which was not open to her on the evidence.

21. It was conceded that, notwithstanding that the application was technically an application to become a party rather than an application for leave to apply for a section 8 or other order, the judge was right to refer to the matters set out in section 10(9) Children Act 1989 and to the merits of PGM's proposed application to be J's carer. However it was submitted that the judge erred in her evaluation of the relevant factors in ways I will set out in a moment and that she was too exacting in her approach to the merits of PGM's case to become J's carer, looking for a good arguable case when all that was required was that the case should be arguable.

22. The judge's evaluation of the relevant factors was said to be at fault in a number of respects.

23. At the heart of the PGM's submissions in this regard was the assertion that the judge had mistaken the import of the section 37 report and the viability assessment, concluding that they were negative when in fact, whilst they did set out concerns, they were inconclusive, not ruling PGM out as a carer but recommending further assessment. It was submitted that the judge's unduly negative view of the reports led her to a wrong conclusion that PGM's prospects of success were so slim that her application should not be allowed to proceed.

24. Ms Loeb did not base her submission that the reports were negative only on an analysis of the terms of those reports. She invited our attention also to LA's support for further assessment following the section 37 report (subject only to a dispute as to who should pay for it) which she submitted showed that LA itself did not view the report as negative. She also relied upon LA's arrangement of contact for PGM with J as indicative of a similar view.

25. Whilst I intend to discuss the majority of Ms Loeb's arguments later in this judgment, this particular aspect of them was so fundamental that I will deal with it straight away. I cannot accept PGM's reading of the LA's reports. It is certainly correct that they do not say in terms that she is definitely unsuitable to look after J in the longer term and that they do not rule out further assessment. They do, however, contain a significant amount that is negative as far as PGM is concerned. The scope and seriousness of LA's concerns about PGM are clear from the reports. As can be seen in the extract from the section 37 report which I set out earlier, without assessment LA was unable even to form a view about whether J would be safe and appropriately cared for, the author of the report saying that without assessment she "cannot comment on whether J is likely to suffer significant harm under PGM's care" (paragraph 5(f) ibid), and that assessment "would need to be undertaken….to establish whether [PGM] is able to provide J with appropriate care and a safe home environment" (paragraph 7.1 ibid). The overall flavour of the report was negative and the author saw assessment as a process that "could" be carried out (paragraph 5(c) of the section 37 report) rather than "should" be carried out. Meanwhile, she was unwilling even to recommend a reintroduction of contact.

26. In the later viability report, assessment was similarly suggested not as a positive way forward but largely as a response to LA's concerns. The author said that further assessment was required of PGM's understanding of the "concerns regarding PGM's ability to protect M from risk of sexual harm" and "concerns about her level of honesty with professionals". It is notable that it was considered that if assessment were to be contemplated, a social work assessment alone would not be sufficient and should be preceded by a psychological assessment. Change was already identified as necessary with a "great deal of work" required on family relationships in particular.

27. The judge was, in these circumstances, entitled to describe the reports as being unfavourable/negative and as raising a number of concerns which she enumerated. It can be seen from the note of judgment that she referred in judgment to the terms of the reports themselves so had their precise terms well in mind.

28. I am not persuaded by Ms Loeb's arguments based on LA's willingness to agree to a further assessment after the section 37 report. It does not follow from this, in my view, that LA viewed PGM's position with any optimism. It was adamantly unprepared to pay for the next assessment itself as can be seen from the fact that a hearing had to be arranged to litigate the issue of funding. It is not uncommon for a local authority to accept that a potential carer should obtain a report at his or her own expense where this will not give rise to delay or to difficulties for the child concerned, even when it has itself already formed a clear view that the carer is unsuitable. Furthermore, things had moved on by the time of the hearing before the judge with a second assessment having arrived at similar conclusions to the section 37 report, the care proceedings being nearer to a resolution and, inevitably, the need for a decision about J's situation having become more urgent. Whatever LA thought about further assessment immediately following the first report had become largely academic.

29. Similarly, I do not find LA's arrangement of contact to be a significant indicator of its view of PGM's case as a carer either. There are various other reasons why contact may be arranged including a willingness on the part of a local authority to ensure that the awaited decision of a court is not pre-empted by a relationship being lost meanwhile, the local authority's own acceptance (as here) that, depending on the nature of the child's future placement, there may be a benefit in some contact between the child and a relative, and so on.

30. I return to my resume of PGM's submissions about the judge's evaluation of the circumstances of this case.

31. It was argued that the judge gave insufficient weight to the benefits of a family placement for J, which could be substantial notwithstanding problematic relationships within the family.

32. It was submitted that Re J (Leave to issue application for residence order) [2003] 1 FLR 114 required the judge not to dismiss PGM's application without a full inquiry. She erred in placing too much weight on the allegations of the parents, it was said, when she should have been cautious in her approach to this untested material, particularly when the parents were not engaging very actively in the proceedings. It was submitted that the judge failed to take account of M's own action in placing J with PGM prior to his accommodation by LA (as referred to in the preamble to the Family Proceedings Court order of 10 June 2011) which it was said undermined her allegations that PGM is not a fit person to care for him.

33. As to delay, upon which the judge placed reliance, it was argued that there was no evidence before the court as to what delay might actually be involved in assessing PGM further. The court should, it was said, have joined PGM as a party and the matter could then have been listed for a hearing with proper consideration on evidence as to the impact and appropriateness of further assessments; very little delay would have been caused by the matter proceeding to that stage. Depending on the result of that hearing, PGM's party status could have been reviewed and she would no doubt be discharged from the proceedings if assessments were not ordered as, it was conceded, she would not be able to care for J without being further assessed. 

The law
34. A curiosity of this case is that by the time of the care proceedings, PGM had already been granted leave to apply for both contact and residence in the private law proceedings. The rather unsatisfactory position appears to be that the private law proceedings are in limbo, neither joined with the public law proceedings nor withdrawn or dismissed. We therefore explored with Ms Loeb what the implications of the leave granted by the Family Proceedings Court were. She did not argue that it entitled PGM to make applications in the care proceedings. She accepted that there were difficulties in the way in which it was granted in that the parents failed to attend the leave hearing with the result that the justices did not have the benefit of hearing argument for and against the order. She did not criticise the judge for approaching the matter on the basis that the fact that they granted leave was of note but not binding on her.

35. The application upon which Judge Raeside was adjudicating was PGM's application to become a party to the care proceedings. It was not an application for directions under section 38(6) of the Children Act 1989 or under any other provision to be found in statute or rules for an order for assessment involving PGM and J, still less an application for leave to apply for a substantive order such as a residence order. At first sight, it may therefore seem curious that all parties agreed, and the judge accepted, that the provisions of section 10(9) were relevant, as section 10(9) relates to a "person applying for leave to make an application for a section 8 order". However I am satisfied that this was an appropriate approach.

36. There is no guidance in the Children Act 1989 or the Family Procedure Rules 2010 which specifically assists as to the approach that should be taken to an application for joinder and the welfare of the child is not the paramount consideration in either an application for party status or an application for leave to make a substantive application because neither of these applications involves the court in determining "any question with respect to….the upbringing of a child", see for example (in relation to joinder/discharge of a party) North Yorkshire County Council v G [1993] 2 FLR 732 and Re W (Discharge of Party to Proceedings) [1997] 1 FLR 128 and (in relation to leave to apply for a section 8 order) Re A and W (Minors)(Residence Order: Leave to Apply) [1992] 2 FLR 154.

37. There is authority to the effect that although no section 8 order is actually being sought by the person who is seeking to be joined as a party, reference must be had to section 10(9), see W v Wakefield City Council [1995] 1 FLR 170 in which Wall J (as he then was) also considered two other decisions by Family Division judges, G v Kirklees Metropolitan Borough Council [1993] 1 FLR 805 and North Yorkshire County Council v G [1993] 2 FLR 732. It was not argued before us that these authorities were wrong or that the introduction by Rule 1 of the 2010 Family Procedure Rules of an overriding objective required them to be reconsidered and I can see no reason why they should be questioned. It is logical that a judge determining an application to become a party to proceedings should have an eye to what may follow joinder. To illustrate this with an obvious example, there would be no point in joining someone as a party if they would then inevitably be refused leave to bring an application in relation to the child and would have no other legitimate role in the proceedings.

38. Section 10 sets out when the court may make a section 8 order in relation to a child. Certain people are entitled to apply for such an order, certain people require leave to make the application, and there are also situations in which the court can make an order even though no application has been made. Section 10(9) is concerned with the factors that may be particularly relevant where someone other than the child is applying for leave to seek a section 8 order. It provides:

"Where the person applying for leave to make an application for a section 8 order is not the child concerned, the court shall, in deciding whether or not to grant leave, have particular regard to

(a) the nature of the proposed application for the section 8 order;
(b) the applicant's connection with the child;
(c) any risk there might be of that proposed application disrupting the child's life to such an extent that he would be harmed by it; and
(d) where the child is being looked after by a local authority –

(i) the authority's plans for the child's future; and
(ii) the wishes and feelings of the child's parents."

39. It can be seen that section 10(9) does not contain anything in the nature of a test by which an application should be judged, nor even criteria which must be satisfied before leave can be given, nor is anything of the kind to be derived from the rest of section 10. Neither does the subsection circumscribe the factors that can be taken into account in determining the leave application; it leaves the court to take into account all the material features of the case and merely highlights certain matters which are of particular relevance.

40. A feature which is not specifically picked out in section 10(9) but has been acknowledged in the authorities to be of relevance is the merit of the proposed application. The first authority to which we were taken in this regard was G v Kirklees Metropolitan Borough Council (see above). There a child's aunt applied to be made a party to care proceedings in relation to the child with the object of seeking leave to apply for a residence order. Booth J held that section 10(9) did not preclude the court from considering all the circumstances of the case or from having regard to the merits of the application. She pointed out that in Re A and W (see above) the Court of Appeal examined, on a broad basis, the merits of the proposed substantive application and considered whether it was one which had a reasonable likelihood of success. Counsel for the aunt contended that that was too stringent a test at that stage and that it was sufficient for the aunt to show that she had an arguable case but Booth J did not accept that, requiring the aunt to "establish a case that is reasonably likely to succeed if she is going to be joined as a party in order to seek relief".

41. From 1995, the Court of Appeal decision of Re M (Care: Contact: Grandmother's application) [1995] 2 FLR 86 became for some time the guide to the proper approach to an application for leave to make a section 8 application. Re M in fact concerned an application by a grandmother for leave to apply under section 34 for contact with a child in care and section 10(9) does not apply to such an application. However, the Court of Appeal considered the factors set out in section 10(9) to be relevant also to a section 34 application and therefore commented upon section 10(9) and, in that connection, dealt with the question of the relevance of the merits of the proposed application. In the course of so doing, Ward LJ set out the approach he thought should be taken to this consideration. He said that the application for leave would of course fail if it was frivolous, vexatious or otherwise an abuse of the process of the court, and that it would also be dismissed "if it failed to disclose that there is any eventual real prospect of success, if those prospects of success are remote so that the application is obviously unsustainable". He said (at page 98) that the applicant

"must satisfy the court that there is a serious issue to try and must present a good arguable case. 'A good arguable case' has acquired a distinct meaning: see the long line of authorities setting out this as the convenient approach for the grant of leave to commence proceedings and serve out of the jurisdiction under RSC Ord 11. One should avoid unprofitable inquiry into what precisely these turns of phrase mean. Their sense is well enough known – is there a real issue which the applicant may reasonably ask the court to try and has he a case which is shown to have a better-than-even chance, a fair chance, of success? One should avoid over-analysis of these 'tests' and one should approach the matter in the loosest way possible, looking at the matter in the round because only by such imprecision can one reinforce the importance of leaving the exercise of the discretion unfettered."

42. The next authority in time is Re G (Child Case: Parental Involvement) [1996] 1 FLR 857 which was cited to us as authority that the test propounded by Booth J in G v Kirklees County Council (see above) was too high. However I did not find it particularly helpful. It is clear that such comments as Butler-Sloss LJ made at page 865 were obiter and the context seems to have been the rather different one of a section 91(14) order.

43. The next authority which requires more detailed consideration is therefore the decision of the Court of Appeal in Re J (Leave to issue application for residence order) [2003] 1 FLR 114. The local authority had ruled out a grandmother who had been significantly involved in the child's life on the basis that bringing up the child would be too much of a burden because of her age. She applied for party status in the care proceedings and for leave to issue an application for a residence order. The Court of Appeal stressed the importance of appreciating the value of what grandparents have to offer. Thorpe LJ said at [19]:

"Judges should be careful not to dismiss such opportunities without full inquiry. That seems to me the minimum essential protection of Arts 6 and 8 rights that Mrs J enjoys, given the very sad circumstances of the family."

44. The judge below had applied the approach set out by Ward LJ in Re M. Thorpe LJ observed that what was said in Re M was said in relation to the discharge of the judicial task under section 34(3) and not directly in relation to the discharge of the judicial task under section 10(9). He commented (at [17]) that judges had applied "the three-fold test formulated by Ward LJ" "in the determination of applications under s 10(9)"  which, he said, "has had the laudable purpose of excluding from the litigation exercise applications which are plainly hopeless". However, he re-focussed attention on the terms of section 10(9).

45. At [14] he said:

"The statutory language is transparent. Nowhere does it import any obligation on the judge to carry out independently a review of future prospects."

46. Later he said:

"[18] I am particularly anxious at the development of a practice that seems to substitute the test, 'has the applicant satisfied the court that he or she has a good arguable case' for the test that Parliament applied in s 10(9). That anxiety is heightened in modern times where applicants under s 10(9) manifestly enjoy Art 6 rights to a fair trial and, in the nature of things, are also likely to enjoy Art 8 rights."

47. I asked Ms Loeb in argument to assist me as to where this left the position in relation to the relevance of the merits of the applicant's proposed case. She did not seek to argue that the merits were irrelevant but simply that, as I have set out above in summarising her submissions, it was too much to ask for a good arguable case and all that should be required is that the case be arguable. This seems to me to be consistent with the thinking behind Thorpe LJ's judgment in Re J. His approval at [17] of the exclusion of applications that are plainly hopeless shows that he did not consider the merits to be irrelevant even though they are not mentioned specifically in section 10(9) and I take it from what he says in that paragraph and in [18] that he would look for an arguable case and not something higher than that. Equally, however, he was clearly anxious to prevent the grant of leave hinging entirely on the merits of the proposed application when that was not a factor singled out for mention in section 10(9).

48. I hope I might be forgiven for indulging myself with my own summary of the position which I hope reflects Thorpe LJ's view albeit put in slightly different terms. As I said earlier, I do not see section 10(9) as containing a test. By picking out some factors to which the court should have "particular regard", it acknowledges by implication that there may be other factors which the court has to consider. It would be wrong, in my view, to try to list or limit these factors which will vary infinitely from case to case. One amongst them is plainly the prospects of success of the application that is proposed; leave will not be given for an application that is not arguable. I do not intend to attempt a definition of what is arguable but I would make a few observations before I leave the question of the proper approach to an application to which section 10(9) applies, whether directly or through an application to be joined as a party with a view to seeking the sort of outcome that could be the subject of a section 8 order.

49. The first observation is that the fact that a person has an arguable case may not necessarily be sufficient to entitle him or her to leave under section 10 or to joinder as a party. I say this because section 10(9) picks out other factors as requiring particular regard and I think it must follow that there may be situations in which, when the judge exercises his or her discretion, balancing all the relevant factors, the presence of an arguable case is outweighed by those other factors or, indeed, by any other factor that carries particular weight in the individual circumstances of the case. Suppose, for example, that the applicant wishes to advance a barely arguable case with many attendant problems in relation to a child with special needs who is securely placed with an irreplaceable long term family who will be unable to withstand the rigours of any further litigation.

50. The second observation is that there is room, in cases concerning children, for applications or proposed applications to be checked at a very early stage and without wholesale investigation. The court has a broad discretion to conduct the case as is most appropriate given the issues involved and the evidence available, see for example Re B (Minors((Contact) [1994] 2 FLR 1, Re C (Contact: Conduct of Hearings) [2006] 2 FLR 289 and Re N; A v G and N [2009] EWHC 1807 (Fam). Accordingly, some cases can appropriately be determined on submissions alone, for example. Furthermore, it is not always necessary for findings to be made in relation to all (or sometimes any) disputed facts, perhaps because the result does not depend upon them or because there are quite sufficient undisputed facts to form the foundation of the decision that needs to be taken. What is more, there is no absolute entitlement to assessment with a view to caring for a child; TL v LB of Hammersmith and Fulham [2011] EWCA Civ 812 contains observations relevant to this point.

51. It is for the judge to ensure in each case that there is a fair determination of the claims of the parties and the issues in the case. Thorpe LJ's statement in Re J that judges should be careful not to dismiss the possibility of a child being cared for by grandparents "without full inquiry" must be read in the context of the facts of the particular case he was considering. The prospects of a grandparent taking over the child's care must, of course, always be looked into carefully because it can be greatly to a child's benefit to be kept within the family by such a placement. Our attention was invited also to Re C (Family Placement) [2009] EWCA Civ 72 which exemplifies this. But there are various levels of investigation of the possibilities. At one end of the spectrum, the grandparent's proposals may need to be explored at a full hearing with reports and on oral evidence; at the other a careful but limited examination of the situation by the local authority may disclose overwhelming reasons why care by the grandparent is obviously not an option. I do not think, therefore, that what Thorpe LJ said should properly be interpreted as a requirement that any grandparent who wishes to put forward proposals should be joined as a party to existing care proceedings or given leave to issue a section 8 application or still less permitted to air their case at a full hearing on evidence. Sometimes some or all of these things will be appropriate, sometimes none and it is for the judge to weigh the various factors and decide what the proper order is in the individual case. This court is slow to interfere with discretionary decisions of this kind.

52. Finally, a word about delay. Section 10(9)(c) provides that the court must have particular regard to "any risk there might be of [the] proposed application disrupting the child's life to such an extent that he would be harmed by it". In Re M (supra), Ward LJ said (at page 95/96) that this particular provision was directed at risk to the child arising from the proposed application rather than arising from the making of any order that might result from it. Delay occasioned by or associated with the application is an obvious source of disruption and harm and must properly be considered under this heading.

Discussion concerning the judge's decision
53. I have already said that I do not consider that the judge erred in her treatment of the reports on PGM as unfavourable/negative. I do not consider that she erred in directing herself as to the proper approach to the decision she had to make either; she made appropriate reference to section 10(9) and identified the features of the case that could be said to fall under each of its paragraphs as well as paying regard as she was required to do to the merits of the proposed application and to the circumstances of the case generally.

54. It remains therefore to consider whether the judge weighed the relevant factors appropriately and whether the conclusion at which she arrived was open to her.

55. She took into account the favourable points that could be made on behalf of PGM. A particularly weighty consideration was that she is J's grandmother and the judge had in mind the high importance that should be placed on a family placement. I do not accept that this was a factor to which she attributed too little weight. She also had proper regard to the human rights of PGM. Furthermore, she bore in mind that LA had arranged contact for PGM (see the postscript to the judgment). In addition, in considering the question of excessive use of alcohol, she paid attention to the negative liver function test that PGM had had the previous year.

56. It was obviously important that the judge recognised that some of LA's concerns arose from allegations which were as yet untested. She acknowledged this expressly during her judgment and when, towards the end of her judgment, she collected together features for and against granting PGM's application to be joined as a party, she put into the scales in favour of joinder that it would allow the issues to be fully tested.

57. However there were, as the judge recognised, a significant number of factors which weighed against granting the application. She rightly said that the assessments raised not just one or two minor difficulties but real difficulties that needed full exploration and a very full expert's report. She saw the prospect of a successful outcome for PGM as very slim and there was material to justify this view. I will concentrate on the matters that were not/could not realistically be challenged by PGM to demonstrate this.

58. Because of his history to date, J is a "very confused little boy" who, the reports identified, needs a stable home background with nurturing and encouraging care and free from adults engaging in violence, aggression and frequent heated squabbles. However the picture that has emerged so far of PGM's situation is of a dysfunctional and deeply divided family in which excessive alcohol use and violence have featured in the not too distant past.

59. Whatever the truth with regard to the allegations made about PGM's care of M and F and F's sister, it is troubling that matters between them are such that such allegations have been made. Not only does PGM have a very acrimonious relationship with M, she also has serious difficulties in her relationship with F and his sister, neither of whom speaks to her any more as we are told in the section 37 report. She appears to have no understanding of why this is so as her case is that they had positive childhoods in her care. Her siblings apparently no longer speak to her either because they did not agree with her caring for their mother (who died in 2008) and wanted their mother placed in a residential home.

60. PGM has a history of forming relationships with men who are violent or drink alcohol excessively and is said to show little reflection on this pattern of relationships, simply considering herself unlucky in her choice of partners. Matters have at times deteriorated to the point where the police had to be called due to incidents of violence exacerbated by alcohol use, the police having been called out as recently as March 2011.

61. In discussion with social services for the purposes of the assessment reports, PGM conceded drinking excessively herself, although not until after her mother died and not since she asked her partner GT to leave in April 2011. She has a drink related conviction dating from 2008 or 2009. It may be that the author of the viability assessment was mistaken in thinking that she was not open about her other convictions but the fact remains that she received a caution in 2005 (for what, she cannot remember) and has an old conviction for assisting in a robbery in 1986 for which she received a suspended sentence.

62. In the light of this material, the judge was entitled to take the view that PGM would have an uphill struggle in presenting a case to be the long term carer of her grandchild with his particular needs and vulnerabilities.

63. The judge also gave careful consideration to the issue of delay. It is difficult to understand the procedural twists and turns of this case as it made its way to Judge Raeside but, as McFarlane LJ observed when giving permission on paper for this appeal, it has to be borne in mind that PGM cannot be blamed for listing delays such as that between the issue of her application for party status and the hearing. However the judge was not in error, in my view, in paying attention to the need to determine speedily where J was going to be placed, particularly given his age and his circumstances so far. Delay caused by processing an application by PGM certainly gave rise (to use the words of section 10(9)) to the risk of disruption to his J's life to the extent that he would be harmed by it. 

64. Furthermore, I am not persuaded that the judge was at fault in proceeding to evaluate, there and then, the likely delay that would be occasioned by assessment of PGM. It was not necessary for her to adjourn to a hearing with further evidence about this as there was already sufficient material to lead her to the view that assessment would take a significant amount of time. The existing reports contemplated that prior to assessment by the family plus services there would need to be a psychological assessment of PGM. Further social work assessment would have to follow that, and there was also a requirement for "a great deal of work … to be done with all parties" to address the acrimonious relationships in the family. Such disputes as to fact as were material to PGM's ability to look after J would also need to be resolved.

65. The judge clearly had in mind the submission made on behalf of PGM (which she recited in her judgment) that delay can be justified if it gives the child a chance of a placement in his birth family but she was still entitled to take delay into account, as she did, as part of the circumstances relevant to her determination.

66. In conclusion, therefore, I do not consider that the judge erred in her approach to the decision to refuse to join PGM as a party to the care proceedings or arrived at a conclusion which was not open to her and I would dismiss this appeal.

Laws LJ:
67. I agree entirely.