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C (A Child) [2009] EWCA Civ 72

Appeal by guardian against decision to place a child with his paternal grandmother rather than for adoption. Appeal dismissed.

The child’s mother and father were separated and had drug problems which meant that it was very unlikely that either would be able to provide a home for the child or his older half-sister. The two children were currently in short term foster care and the local authority’s plan was to leave the older child in foster care while seeking adoption for the younger child. The guardian supported that plan but the paternal grandmother was joined to the proceedings and sought a residence order supported by all the other parties, including the half sister. The trial judge dismissed the local authority’s application for care and placement orders and made the residence order instead.

The local authority appealed on the grounds that the judge’s conclusion was plainly wrong on the primary basis that it was wrong to leave the proceedings on the basis that “the family will rally round if and when the grandmother’s circumstances disable her from continuing to act as his primary carer”. However Wilson LJ, while accepting that the circumstances were unusual, dismissed the appeal because i) the residence order was in favour of a member of the child’s wider family, and the law is biased in favour of such placements; ii) most importantly, the grandmother had a good relationship and substantial track-record of commitment to the child in very difficult circumstances; iii) the grandmother was sincere in expressing commitment to the idea of substantial continuing contact between the child and his half sister.

Case No: B4/2008/3015
Neutral Citation Number: [2009] EWCA Civ 72
(LOWER COURT No KT07 C01076)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Friday, 2nd January 2009

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In the matter of C (A Child)

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(DAR Transcript of
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Miss Kate Hudson (instructed by McMillan Williams, Thornton Heath) appeared on behalf of the Applicant, the child by his Children’s Guardian.)

Miss Alison Moore (instructed by the London Borough of Merton) appeared on behalf of the First Respondent, the local authority.

The Second Respondent, the mother, did not appear and was not represented.

Miss Poonam Bhari (instructed by Atkins Hope, Croydon) appeared on behalf of the Third Respondent, the father.)

Mr Robin Tolson QC (instructed by Cornish Venning Chellews, Penzance) appeared on behalf of the Fourth Respondent, the paternal grandmother.)

Mr Brian Jubb (instructed by Russell-Cooke, Kingston-upon-Thames) appeared on behalf of theFifth Respondent, the half-sister.)

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(As Approved by the Court)
Crown Copyright©

Lord Justice Wilson:
1. A child, by his Children’s Guardian, appeals against orders made in relation to him under the Children Act 1989 by HHJ O’Dwyer in the Principal Registry of the Family Division on 24 November 2008.  It fell to the judge to choose the child’s future home: the question was whether the child should go to reside with his paternal grandmother, or whether, notwithstanding the preference in the law for a placement within the wider family if practicable, the evidence drove him to a conclusion that the child should be placed for adoption.  In the end the judge chose for the child a life with the grandmother.  It is against that conclusion that, by his guardian, the child appeals. 

2. When I say that the child, namely a boy, J, is aged five and that the grandmother is aged  seventy, I explain what lies at the heart of this appeal. There must be substantial doubt whether the grandmother will be able to continue to offer J a home throughout his minority and in particular whether, even were she (as one hopes) to remain living throughout that period, she would retain the physical and emotional strength necessary properly to cater for J’s needs as a teenager.

3. Before the judge were applications by the London Borough of Merton (“Merton”) for care  and placement orders in relation not only to J but also to his half-sister, S, now aged thirteen.  S was born to the mother of both the children by a man other than J’s father.  The application for care orders was issued in March 2007, shortly after Merton had received S and J into care. They remain placed together -- indeed, we are told this afternoon they share the same bedroom -- in what was intended to be a short-term foster placement.  In the course of the protracted hearing issues in relation to S’s future were resolved, apparently without much, if any, conflict, by the judge’s making a full care order in relation to her upon a plan that she would remain in the foster home but on a long-term basis.  The focus of the proceedings was therefore J.

4. In Merton’s application for a care order in relation to J, to which their application for a placement order was in due course added, the first respondent was the mother of both children.  In the proceedings she accepted that she was not in a position to offer either of the children a home.  She added, however, that she hoped to be able to offer J a home in the future; the judge described that hope as entirely unrealistic.  The mother has been beset with drug problems; and it is an important feature of the case that, particularly in the months prior to their reception into care in February 2007, the children were subject to grave drug-related neglect and to filthy home conditions, likely to have left their mark on them in psychological terms and thus likely to present particular future problems for them and for their carers.  The mother supported the grandmother’s application for a residence order.

5. The second respondent to the proceedings was J’s father, who in 2007 separated from the mother.  He also suffers gravely from drug problems; accepted that he was in no position to offer J a home; and, even though he appears almost to be estranged from her, he also supported the application of the grandmother, ie his own mother, to care for J. 

6. The third respondent to the applications, or at any rate to the application for a care order, was the grandmother.  In January 2008, before a judge other than HHJ O’Dwyer, there had been controversy as to whether the grandmother should be made a party to the proceedings.  Merton had opposed the grant to her of party status and the guardian had neither opposed it nor supported it; but the judge had overruled Merton’s opposition.  One of the main threads in the judge’s substantive judgment under appeal is that Merton and the guardian too quickly dismissed the candidacy of the grandmother as a carer for J in the light of her age; and that indeed, even following her acquisition of party status, Merton never properly assessed her candidacy.  I am clear, with the benefit of hindsight, that, irrespective of the proper disposal of this appeal, the grandmother’s candidacy deserved close appraisal; and the opposition to her party status seems to have been symptomatic of a want of recognition of it on the part of Merton.

7. The fourth respondent to the applications was S.  It may be that, insofar as the application directly concerned herself, she had the benefit of a Children’s Guardian.  It seems, however, that she was also considered competent to instruct solicitors directly in order to make representations on her behalf, in particular in relation to the issues surrounding J.  S and J have a close relationship and S expressed acute concern – purportedly from his perspective as well as from her own -- at the prospect of its effective loss.  So S also supported the grandmother’s application.

8. The fifth respondent to the proceedings was J himself, by his Children’s Guardian.  As will have become apparent, the guardian very actively supported Merton’s applications, notwithstanding speculation, accepted by the judge, that, had he been of an age to express his wishes or feelings, J would have been likely to have indicated a desire to live with the grandmother rather than to be adopted. 

9. The orders made by the judge on 24 November 2008 were, therefore, to dismiss Merton’s applications for care and placement orders relating to J; to make a residence order referable to him in favour of the grandmother, and, in that the grandmother resides in Perranporth, to make a supervision order referable to J in favour of Cornwall County Council for one year.  In the light of the pendency of this appeal, further interim care orders have been made so as to preserve J’s residence in the foster home until today. 

10. The alignment of the parties in this appeal will now be clear.  The guardian brings the appeal and is actively supported by Merton.  The principal opponent of the appeal is the grandmother.  She however collects the support of the mother, of the father and of S, all of whom have, by their lawyers, filed position statements in support of her stance and have, apart from the mother,  arranged to be represented by counsel at this hearing.

11. The hearing before the judge proceeded for fourteen days which, unfortunately, were spread out over many months.  The first four days were in April 2008; the second four days were in May 2008; and the final six days were in September/October 2008.  Thereupon the judge reserved judgment and delivered it, orally, on 21 October 2008.  In the light of his decision that J should go to reside in Cornwall, a further adjournment was then directed in order that Cornwall’s Social Services Department could attend before the judge and indicate what level of support they would provide for the grandmother.  Thus the final day of the hearing took place on 24 November 2008, when the orders which I have identified were made. 

12. The purpose of so lengthy an adjournment between May and September 2008 was to provide an opportunity for assessment of the possibility that J might go to reside with one of the grandmother’s other children, namely Mrs C, whom I will describe as “the aunt” and who at any rate at one stage was yet a further respondent to the application for a care order.  The aunt had also been living in Perranporth but in August 2008 she moved to Truro, ie. about 15 miles inland. It seems that her accommodation there is temporary and that she might move back to Perranporth or indeed elsewhere, possibly to Devon.  In the event, in July 2008, the aunt, by solicitors, indicated that she was withdrawing from any candidacy as a primary carer for J.  The question remained, however, whether the aunt would be able and willing to provide support for the grandmother in the event that J went to reside with her and, in particular whether in later years, were the grandmother not able to continue satisfactorily to care for J, the aunt might be ready and able to offer J a home or otherwise to help in his care.  Of course the answers to those questions might be substantially dependent upon where the aunt might reside and upon her other circumstances, both in the near and in the distant future.  Although the letter from her solicitors was to some extent ambiguous, the judge did not understand it to amount to a withdrawal by the aunt of an offer of support, in principle, in those respects; indeed, now that, with the assistance of Miss Hudson on behalf of the child, we have conducted some research into the evidence in that regard, I am satisfied that the judge was entitled to proceed upon the basis that the aunt was still prepared to offer that secondary degree of support.  The aunt’s withdrawal from candidacy for J’s primary care also has to be considered in a most unusual and distressing family context, namely that in 2006 one of her sons was murdered in a street attack in London and that in 2007 another of her sons was charged in Cornwall with affray and the concealment of an offensive weapon in -- let me hasten to confirm -- an entirely unrelated incident.  In the event, in August 2008, that son was acquitted of all charges; but both the aunt and the grandmother were the subject of significant criticism by Merton, by the guardian and indeed by the judge, for not having divulged, within the present proceedings, the charges pending against the son until a date close to his trial.

13. I have referred to the width of the grandmother’s family.  She has adult children other than the father and the aunt.  I believe that the judge would be the first to recognise, in retrospect, that it would have been preferable for him, at an early stage of the judgment, to identify, perhaps by the incorporation of a family tree, the members of the grandmother’s family, including where they lived.  I have, however, come clearly to understand that the grandmother has two further children, each now being married and with children of their own, some of whom are themselves now adult.  Although they do not live in the West Country and thus only visit the grandmother there for holidays, both of her other two children, and one of her adult grandchildren, indicated within the proceedings their full support for the grandmother’s candidacy as a carer for J and a willingness to act in principle as a backstop in the event that a time were to come when she could no longer satisfactorily care for him. 

14. It was an important feature of the grandmother’s case that she was not just a member of J’s wider family, ready and able to offer him a home, but that she had an important relationship with him.  The evidence was that, prior to his reception into care in February 2007, she and J had built up, both in London, where he lived with the parents and S, and in Cornwall, a significant relationship.  Upon his reception into care Merton severely curtailed the grandmother’s contact with him.  Until a late stage in the proceedings they allowed her to have contact with him only monthly, only for up to about two hours and in particular only on a supervised basis.  The judge described -- in my view, he was entitled to describe -- the arrangements made by Merton for the grandmother’s contact as “woefully inadequate”.  The amount of contact was all of apiece with Merton’s view, from the earliest stage, that there was no significant role for the grandmother to play in the future life of J.  To her credit, however, the grandmother, funded by Merton, took the long journey regularly to London for these short, supervised occasions.  The final care plan of Merton was that, following adoptive placement, J should have direct contact with S twice a year and, possibly, direct contact with the grandmother once a year, together of course with letterbox contact with both of them.  The judge expressed the view that, left to themselves, Merton would be unlikely to arrange the “possible” annual contact with the grandmother.  He added that, had he been minded to make a placement order, he would have considered making positive orders that J should continue to see S at least three times a year and to see the grandmother at least once a year.  Whether actual court orders of that character, binding upon the adopters, would have significantly limited the pool of potential adopters for J can be a matter only of speculation.

15. What was the professional evidence before the judge?  It came from four quarters. 

a) Merton.  For two months after October 2007, when the grandmother’s solicitors began to write to them, Merton did not even acknowledge their several letters; and clearly Merton must now review their procedures in this respect and seek to regain their reputation for competence.  But, even after the judge had decided to grant party status to the grandmother in order that she could pursue her candidacy as a carer for J, Merton made only the most perfunctory assessment of her.  It was not even until September 2008 that a newly allocated social worker went to visit her in Cornwall.  Their prior assessment of her, such as it was, seems to have been by questionnaire, delivered to her either over the telephone or in writing.  Unsurprisingly the judge felt unable to attach much weight to Merton’s own negative assessment of her candidacy.

b) Dr Sales.  She is a consultant child and adolescent psychiatrist who, in the course of the protracted proceedings, wrote four reports and gave oral evidence.  She observed an occasion of contact in London between the grandmother and J and spoke warmly of it; she also attempted to interview the grandmother on that occasion but, most unfortunately, the grandmother had understood -- surely had misunderstood -- that her solicitor was advising her, in effect, not to cooperate with Dr Sales.  In those circumstances it was through no fault of the doctor that that interview had not proved particularly illuminating.  At all events it was the initial opinion of Dr Sales, and it remained her opinion, that it would be preferable for J to be placed for adoption, in the light of the likelihood, apart from any other factors, that the grandmother would be unable to continue to care for him throughout his minority.  Dr Sales did however ultimately recognise that there were positive features of the grandmother’s candidacy; that the decision which faced the judge was difficult; and that it was only on balance that she recommended adoption. 

c) Miss Wilson. With the court’s permission the grandmother instructed Miss Wilson to make an assessment of her.  Miss Wilson works part-time both for Cornwall and for CAFCASS in Cornwall.  After interviewing the grandmother three times, observing a period of contact between her and J in London and speaking to various members of her family, she made a report, and gave oral evidence, upon which the judge heavily relied.  Her clear recommendation was that J should go to reside with the grandmother.

d) The guardian.  Ms Farmer, the guardian, is a very experienced and highly respected CAFCASS officer who, throughout these proceedings, has adopted and maintained a very clear view that it would be better for J to be placed for adoption.  Her early view was that the grandmother’s candidacy was not even sufficiently arguable to warrant comprehensive assessment.  This appeal is testament to the strength of her view, as, for example, is the fairly acid exchange between Miss Hudson and the judge following judgment in relation to permission to appeal.

16. The burden of the guardian’s appeal, and of Merton’s active support for it, is not that there was any demonstrable flaw in the way in which the judge approached his task but, simply, that his conclusion was plainly wrong.  Various criticisms are made of the grandmother, in particular that, when asked by the guardian about any criminal history, she failed to disclose convictions recorded against her for shoplifting in 1981 and in 1990.  The guardian has been quick to make clear that it is less the fact of those convictions than the concealment of them from her which has caused her concern; the judge addressed the point and in the event put it to one side on the basis that the grandmother seems to have understood that, even in these proceedings, such convictions were to be regarded as spent and thus that their disclosure was unnecessary.  Criticism is also made and, as I have indicated, was accepted by the judge in relation to the grandmother’s failure promptly to disclose the serious charges which were pending against one of the aunt’s sons.  Miss Hudson this afternoon strongly argues that these two features raise a real spectre that, were there to be some development in relation to J which required disclosure to Cornwall or to some other professional person or body, the grandmother could not be relied upon to disclose it.  In my view the edifice which Miss Hudson has sought to construct in that regard this afternoon is far too substantial for so slight a foundation.  In effect written off as a carer by Merton, by the guardian and initially by Dr Sales, the grandmother no doubt reacted against them, presented as heavily defended and failed to be as frank with them as she should have been.  But whether such should yield an inference of some dangerous resistance within the grandmother to seeking professional help in relation to the care of J seems to me to be not only a very open question but, more importantly, pre-eminently one for answer by the judge rather than by us this afternoon.  Although, like Merton, the guardian concedes that in general it was open to the judge to describe the grandmother as fit and young for her years, complaint is also made that he failed to refer to a report on her in which, albeit generally complimentary about her health and fitness, her GP stated that she smoked fifteen cigarettes a day, had high cholesterol for which she declined medication, and took sleeping tablets and regular medication for indigestion. 

17. Fundamentally, however, this appeal turns upon the age of the grandmother and the likelihood that, irrespective of whether she remains alive for the next thirteen years, she will prove incapable, at any rate towards the end of that period, of caring satisfactorily for J.  The fact is, as I have explained, that J suffered a turbulent and dysfunctional upbringing in the care of his mother, with the result that, even though he currently displays no particular symptoms of damage, they may well emerge as his minority develops.  What exactly, asks Miss Hudson, is the judge’s plan for J in later years if, or probably when, the grandmother proves incapable of sustaining his primary care?  It was, so her argument runs, almost irresponsible of the judge to have left his plan sketched only in the barest outline, by reference to the likely presence, somewhere or other, of the aunt, of the grandmother’s other two children (and obviously excluding, for this purpose, the father himself), and the grandmother’s various other grandchildren, some of whom are already adult.  Although the substantial wider family impressed both Miss Wilson and the judge in terms both of its cohesiveness and of its commitment to J, it is, submits Miss Hudson, wholly unsatisfactory for the judge to close the proceedings on the footing first that, in one way or another, the family will rally round if and when the grandmother’s circumstances disable her from continuing to act as his primary carer; and on the footing also that, at that time, J will probably be able to move somewhere or other reasonably satisfactory, albeit, adds Miss Hudson, probably away from Perranporth, away from his school and away from his circle of friends. 

18. These arguments are worthy of substantial respect.  The judge afforded them such respect.  Are they, however, so compelling that this court should castigate his contrary conclusion as plainly wrong? 

19. There is no doubt that it is very unusual to consider it appropriate to commit a five year old child to the care of a seventy year old grandmother.  But, in a passage of her report which clearly impressed the judge, Miss Wilson described it as imperative that the grandmother’s candidacy should not be considered so baldly.  I now refer to three points, upon none of which the admirable Miss Hudson has touched this afternoon; she can hardly be expected to have stressed points running counter to her appeal, but, within the guardian’s objective analysis on behalf of the child, they might have attracted a brief acknowledgement.  First, this was the candidacy of a member of J’s wider family, with the result that the law’s bias in favour of placement within the family was engaged.  Second, and most importantly, it was the candidacy of a grandmother who had a substantial track-record of commitment to J, through contact, in very difficult circumstances and who had established a relationship with him which both Miss Wilson, Dr Sales and indeed the guardian, all of whom had observed periods of contact, described in very positive terms.  Third, there was also no doubt that, notwithstanding the absence of any biological link on her part with S, the grandmother was sincere in expressing commitment to the idea of substantial continuing contact between J and S, particularly in Perranporth.  The proposal of Merton and of the guardian was not, after all, for the adoption of a baby but rather of a five year old child, who had built up important attachments with family members, in particular with the grandmother, and also with S with whom, so Miss Hudson tells us this afternoon, he has lived in effect throughout his life.  The proposal for J’s adoption involved gross curtailment, if not effective elimination, of those two relationships.  Indeed, whatever the degree of care with which J’s adopters would no doubt be chosen, it could not be guaranteed that the adoption of a five year old child would not itself fail as the years proceeded.  Although the judge departed from the clear view both of the guardian and the view, albeit ultimately only on balance, of Dr Sales, he did not reach a conclusion which lacked all professional support. 

20. With such very firm convictions as to where the interests of J lie, the guardian feels, so I sense, almost affronted -- as well as profoundly concerned for J -- by the judge’s refusal to endorse them.  But I cannot associate myself with the guardian’s complaint that her views were rejected without sufficient explanation.  The judge expressly accepted that the substantial objection to the grandmother’s candidacy was her age; and in my view he satisfactorily identified the ramifications and, for J, the risks consequent upon her age.  Miss Hudson has, in my view, failed this afternoon to identify any substantial area of the evidence which deserved the judge’s attention but which failed to attract it.  In my judgment the judge was faced with a particularly difficult decision.  I would not describe his choice of the grandmother’s home for J as plainly wrong, just as I would not have described his choice of an adoptive home for him as plainly wrong.  It follows that I would dismiss the appeal. 

Lord Justice Jacob: 
21. I agree that this appeal should be dismissed.  The more I read the papers and the more I read the judge’s judgment, the more I came to conclude that I might well have come to the same conclusion as the judge.  That being so, we are far from a case in which the Court of Appeal would interfere with such a decision. 

Order: Appeal dismissed