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B (A Child) [2012] EWCA Civ 632

Appeal by grandmother in private law proceedings against a residence order to be made in favour of the mother of her grandchild once the mother found suitable accommodation. Appeal allowed.

This was an appeal by a grandmother in private law proceedings concerning her grandchild, B.  The respondent to the appeal was the child's mother and the appellant's daughter.  The child had spent most of her life living with her mother at the home of the maternal grandmother.  However, the mother had recently left the property.  There was some dispute as to whether she was living with a boyfriend, about whom allegations were made about his lifestyle or, as asserted by the mother, she was living with a friend.  The grandmother had prevented the mother from taking B with her when she left the property and had subsequently applied for a residence order.  The mother made a cross-application for a residence order and the matter came before Her Honour Judge Plumstead at a short hearing at which a social worker was also present.

The judge made an order that there would be a residence order in favour of the mother when she has been allocated suitable accommodation for herself and the child (such accommodation to be approved by social services) and it was against this order that the grandmother appealed.

It was clear from the transcript of the hearing that the judge had made her intentions clear almost from the outset of the hearing, proceeding from the starting point that the child should be with her mother unless the mother was not able to care for her.  The judge had been made aware that the social worker would be recommending a 12-week parenting assessment of the mother, whilst B remained in the care of the maternal grandmother.  However, when the judge enquired of the social worker as to whether the local authority would have any concerns about B's welfare if she were to reside with her mother in supported accommodation that was not shared, she had been told that there would not be any concerns.

Although the Court of Appeal recognised that the judge's instinct may eventually turn out to be the right outcome, they were of the view that she had reached this conclusion without sufficient evidence and without hearing full oral argument.  They also expressed concern that she had overridden the social worker's proposed suggestion that there should be an assessment before B moved to live with her mother.  The fact that the social worker had not objected when the judge presented him with a fait accompli was not the same as his offering a considered view that it was what was best for the child.  Thirdly, the decision had been made at a hearing that had only been intended to deal with interim contact and consequently nobody had come prepared to argue this issue.

This led the Court of Appeal to conclude that the order must be discharged and an earlier residence order made in favour of the grandmother as a 'holding' order would remain in place.  The Court of Appeal directed that a s.7 report be undertaken in addition to the s.37 report ordered by HHJ Plumstead.  An order for contact between B and her mother was also made, pending a forthcoming directions hearing in the County Court.

Summary by Sally Gore, barrister, 14 Gray's Inn Square


Case No: B4/2012/0736
Neutral Citation Number: [2012] EWCA Civ 632
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday, 20th April 2012


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(DAR Transcript of
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Mr Daniel Pitt (instructed by Stevens Solicitors) appeared on behalf of the Appellant maternal grandmother.

Ms Caroline Bryant (instructed by Adams Harrison Solicitors) appeared on behalf of the Respondent mother.

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(As Approved by the Court)

Crown Copyright ©

Lord Justice Hughes:
1. The adult parties to this family appeal are, respectively, a young single mother of a child just under three and that mother's own mother, the maternal grandmother.  Each had made applications for a residence order, the grandmother on 29 February and the mother on 9 March.  On 14 March, just a few days after those applications, HHJ Plumstead had the case before her on the second occasion that it was in court.  She made a number of orders by way of directions for future conduct and for interim contact.  No complaint is or could be made about those, but she also made the following order in paragraph 3:

"There shall be a Residence Order in favour of the Respondent Mother when she has been allocated suitable supported accommodation for herself and the child and this accommodation has been approved of by Social Services."

2. With the leave of Ward LJ grandmother now challenges that order.  Essentially Mr Pitt's challenge on her behalf is that the order was premature and made without either proper evidence or proper argument, having been made at a short interim hearing which was designed principally to deal with contact. 

3. It is necessary to look at the material which was available to the judge in the course of what we have no doubt was a congested list.  She had the cross applications of grandmother and mother.  Those disclosed that mother is 19, having been born in August 1992.  The child, her daughter, is two and three quarters, having been born on 19 July 2009, so mother was not quite seventeen when the child was born.  Grandmother's application told very little more, at least from her point of view, in a single paragraph in the pro forma.  It told that the child had lived with both mother and grandmother in grandmother's home since she had been born.  It asserted that on 18 February, just a month or so before the hearing, mother had left the family home and had wanted to take the child with her but grandmother had objected and involved both the police and social services.  The upshot was that the child had remained with grandmother.  The grandmother's application also contained the assertion that it was believed that mother had gone to live with a boyfriend who had recently been released from prison and was thought to have only single room accommodation.

4. Mother's cross application, which was also before the judge, said nothing more than that she wished to make a cross application and it contained attached to it some rudimentary assertions of a kind designed eventually to form the basis of a Scott Schedule of allegations and responses.  That disclosed that it was suggested that a police officer had raised concerns about safety issues in grandmother's home; that mother said that grandmother had sometimes left the child with mother's sister, who we understand to have some learning disabilities; and the unparticularised suggestion that grandmother had some health problems.  None of that was answered by grandmother nor was it particularised any further than I have just summarised.  One of the things that mother's application did not disclose was where she was living.

5. That was all the judge had in written form.  There were no written statements nor had any other material been lodged save for a handwritten letter which appeared to come from mother's older sister suggesting that at some time in the past mother had indicated that she wanted grandmother to keep the child at least for the time being.

6. The other thing that the judge could see was that the court had done well to get the case before a district judge for a very brief appointment within a very few days of grandmother's application being made and indeed before mother's cross application could be lodged.  That had happened on the 7 March, exactly a week before the hearing which we are now considering on 14 March.  Grandmother had been represented on that occasion but mother had attended in person.  The District Judge made thoroughly sensible orders.  First he gave leave to grandmother to make her Section 8 application.  Secondly, simply and clearly only in order to hold the position for a week, he directed that the child should stay where she was with grandmother for that week and he made an order for a prompt hearing on 14 March.  No time estimate was given for it but it was said that it was intended to address "any immediate contact arrangements".  Additionally he very sensibly directed that a named representative of social services, Mr Coke, should attend that hearing and he also made a direction that any interim contact should be at grandmother's home.  That, as I have said, it is absolutely clear was no more than a holding order for a week.

7. He also gave mother eminently sound advice that she ought to get herself represented if at all possible as soon as she could.  It was as a result of that, plainly, that mother did find herself a solicitor and did make two days later on 9 March her cross application for residence in the terms which I have already mentioned. 

8. That was everything that was before the judge in written form.  She had advocates for both grandmother and mother and the social worker, Mr Coke, attended as directed.  This, I ought to say, was a vastly experienced judge.  The transcript which we have seen demonstrates that she conducted the short hearing entirely by way of judicial question and advocates' answer.  Her questions and the answers elicited the information that the family was known to social services but that there was no serious anxiety; also that the boyfriend to whom grandmother had referred in her statement was thought by the social worker to be a drug user and an undesirable person to be sharing a home with the child.  She elicited that mother was, however, denying any relationship with that man whereas grandmother asserted that there was a continuing relationship.  She elicited that mother was suggesting that she was staying with a friend called Wendy and was proposing that the child should live with her there.  A little later the judge by perfectly sensibly directed questions ascertained that the friend had a son of similar age to the child in this case and that the social worker had visited Wendy's home and was satisfied that that would be a proper place at any rate for mother to take the child when she had contact.  What was not clear was where mother was living.

9. In the meantime the judge also elicited that mother was applying for supported housing for herself and her daughter.  She had unsurprisingly been advised that she was likely to succeed if, but only if, she had the care of the child.  The social worker knew a bit about the accommodation and was able to tell the judge how it was organised, that it was appropriate for a young single mother and that there was support on the premises Mondays to Fridays between 9 and 5 and additionally cover of an emergency kind at the weekend.

10. All those inquiries which were made by the judge were, if I may say so, thoroughly sensible and directly to the point.  However, they were elicited in the course of a hearing in which the judge made it abundantly clear from about a page and a half into a transcript of 15 pages length that she regarded it as inevitable that the child should be placed with mother and not only at some time in the future but immediately.

11. The judge was told right at the outset of the hearing that it was understood by the advocates that the social worker's oral recommendation was going to be that there should be a 12-week assessment, with the child remaining in the care of the maternal grandmother.  It seems likely that that was a developing view being formed by the social worker rather than a long considered one because he was very new to the case; but that was the information that the judge was given.

12. With that information and in the course of establishing the additional things which I have mentioned, the judge said the following things from a very early stage indeed in the exchanges.  She said first:

"Really if [mother] had a suitable place to live with [the child], then she ought to be living with her mother, rather than her grandmother."

Two sentences afterwards she said that Grandmother would have to learn not to be responsible for the care soon, because inevitably the child was going to have to live with her mother "unless her mother is considered not able to look after her which is not the same as not desirable."  A sentence or two after that, when counsel for grandmother was explaining that the care was on grandmother's case at least in her hands, the judge remarked:

"Well, it is about time things started adapting across."

13. And just two pages later in the transcript, only the fourth page of the exchanges, the judge summarised the position in the course of oral exchanges with counsel briefly.  She said that this was a very young mother who had not yet fully been responsible for her daughter because the responsibility had been shared with grandmother.  She referred to the worries about relationships or other people in contact with the child in grandmother's house.  She said that the best thing would be to make a Section 37 direction to the local authority and she then said:

"I shall direct that [the child] shall live with her mother from the date when supported accommodation, which is not to be shared, becomes available."

14. The exchanges continued for another ten or eleven pages after that but the decision had clearly been made.  Thereafter the judge went on to consider contact.  She made thoroughly sensible provision, given the order that she had decided to make, for contact and for preventing contact between the child and the man who was asserted to be mother's boyfriend and who was thought perhaps not to be a suitable person to be connected to the child. 

15. The judge remarked in the course of the exchanges on the fact that it was apparent that there was a level of hostility between mother and grandmother and counsel made a reference to what had plainly been a verbal disagreement between the ladies outside the door of the court.  The judge however remained of the view that she had expressed and she maintained it despite the fact that grandmother attempted personally to raise objections to it and right at the end of the transcript counsel for her had the opportunity which previously simply had not arisen to observe that she did not consent.

16. In the course of dealing with that the judge said right at the end:

"This is a battle between grandmother and mother.  This child has a mother.  The law is very clear that the child should have the right to grow up with his or her own parent or parents, and should not be in the care of third parties, even a grandmother, unless her welfare demands it … I have decided that the law guides me, and what Mr. Coke has told me today that there needs further assessment.  But it does not place this child's welfare at risk for her to live with her mother, once she has appropriate accommodation …"

17. She had, it should be said, enquired after she had announced her decision of the social worker whether he had any concerns of the welfare of the child if she made the order that she had announced and he had said that he had none whatsoever.

18. As has been said on other occasions, family cases of this kind frequently call for an active interventionist approach on  the part of judges.  The formalities which may apply to other forms of litigation are not always appropriate to hearings of this kind.  It seems to me clear that the judge took the extremely positive line that it was inevitable that the child would need to live with mother if not in the long term at least for an assessment and that the assessment which needed to be made was not with the child living with grandmother but in order to see how mother coped.  That seems to have been the basis of the order which she announced in the manner that she did.

19. For my part it seems to me that it is at least possible that it will turn out that that is precisely what ought to happen.  The difficulty is that the judge simply did not have the material on which to make that decision and, even more, had heard no real argument about it at all, particularly none from grandmother, whose case it involved rejecting.  For my part I also agree that, difficult as it will undoubtedly be for her since the child has lived in her home all her life, grandmother does have to understand that she is not the mother of this child, mother is.  Lastly it is absolutely clear that the one thing that is most damaging to this little girl is that there should continue to be the level of acrimony and hostility between grandmother and mother that there seems at the moment to have arisen.  It takes two to quarrel and it takes two to patch it up.  It is absolutely essential for the child that that be done.

20. Therefore it may well be that it will turn out that the judge's instincts were correct.  They were certainly very informed instincts of, as I have said, an extremely experienced judge.  But, first, she made the decision without any real evidence; secondly, she made it by overriding the social worker's proposed oral suggestion.  If it had been properly debated that would have been open to her but it was not.  The fact that he, once presented with a fait accompli, said that he had no concerns with the welfare of the child in that event is not the same as his offering a considered view that it was the best thing for the child.  He might have thought that or he might not.  We do not know and neither did the judge.

21. Thirdly, this order was made at a hearing which was clearly designed as a short one to resolve interim contact.  That meant that nobody had come prepared to deal with the issue which the judge was resolving.  For my part, despite Ms Bryant's cautious concession on behalf of the mother, I do not think that the last observation which I have quoted from the judge's remarks involved her in making the elementary error of law of misunderstanding the well known decisions of the House of Lords and the Supreme Court in Re G [2006] UKHL 43, 2 FLR 629 and Re B  [2009] UKSC 5, [2010] 1 FLR 551.  She did not, it seems to me, make the mistake of thinking that mother's status as a parent gave her rights which governed the outcome of an issue as to residence.  What she clearly did do was to assume that there simply had to be in the interests of the welfare of the child an immediate order for residence with a view to assessment.  She had not got the material as it seems to me to do that and most importantly of all she did it without ever hearing any proper argument, either for it and, more importantly, against it.  Further, the order that she made involved moving the child.  Of course it was true that the child had always lived not only with grandmother but also with mother but it certainly meant moving the child's home.

22. Those several factors combine to persuade me that the judge in this case out of   the best possible motives moved in the end too fast.  I admire, if I may say so, Ms Bryant's valiant and attractive submissions in support of the judge's order but as I will explain it seems to me that they cannot prevail against the difficulties that I have mentioned. First, Ms Bryant reminds us that the District Judge had made a residence order on the week before and she suggests that there was nothing more wrong with the present order than there had been with the District Judge's order.  The answer to that of course is that the District Judge's order was clearly meant to be a holding order for a week only and indeed there was no alternative at that stage to an order that the child should stay where she was.  Nobody was suggesting otherwise. 

23. Secondly Ms Bryant draws our attention to the observations in this court in Re C (Contact: Conduct of Hearings) [2006] 2 FLR 289.  She reminds us that Wilson LJ as he then was in the course of his judgment observed that judges exercising jurisdiction in relation to children had a broader discretion in the mode of their conduct of the hearing than do judges in the exercise of conventional civil jurisdiction.   Pausing there, there is ample authority for that and it does not need further development but the outcome of Re C was a decision that despite that latitude the judge in that case had, despite her vast experience of children cases, exceeded her powers on the facts of the case.  I am afraid the conclusion is simply unavoidable that the present judge, despite her great experience and despite the respect which is properly due to it, has unfortunately on this occasion done the same.

24. Thirdly Ms Bryant suggested that there was no unfairness in dealing with the matter despite the fact that the hearing had been listed to deal with contact because the position had changed with mother's cross application a few days earlier.   That does not solve the problem that nobody was there to address this particular issue and it certainly does not solve the difficulty that nobody really argued it or had the opportunity to argue it.

25. I am driven to the conclusion that on this occasion this order simply has to be discharged.  What should follow?  The residence order must I am afraid be set aside.  That will leave in place the District Judge's order of 7 March as a holding order.  Mother has now been allotted suitable supported accommodation and we are told that she went into occupation of it a few days ago on Tuesday of this week, which will be 17 April.  She has, if I may say so, sensitively and sensibly not insisted, despite the order, on removing the child so the child remains at the moment in grandmother's home.  There has been some contact although it has been arranged with some difficulty because it is apparent that a level of mistrust unfortunately persists between the adults.  The child, we are told, stayed overnight on Wednesday and Thursday of this week, 18 to 19 April, with mother.  The judge's order now under consideration directed a further hearing on 16 May and gave consequential directions for preparation for it.   Evidence was to be filed by the 4 April and we are told that that has now been done.   Mr Coke from the social services office was directed to attend.  For my part I am quite clear that that proposed hearing of 16 May must remain in place.  We are invited to, and it seems to me right that we should, expand the direction for a Section 37 report for that hearing to one to include a Section 7 report from the social worker addressing the appropriate arrangements for residence and contact as from 16 May and whether on an interim basis or otherwise. 

26. We are invited to consider whether there should be a direction as to who should conduct that hearing.  For my part I can see no reason why HHJ Plumstead, who has dealt with the case thus far, should not deal with it.  She will perfectly well understand the limitations and the parties can have confidence in her judgment once she has seen what this court has said.  On the other hand there is no reason why it has to be  HHJ Plumstead.  It is much more important that the date of the 16 May is held than that any particular judge conduct it. 

27. For my part, subject to anything which counsel may suggest otherwise, it seems to me that that hearing ought to be allowed two hours.  There needs to be some arrangement for contact in the meantime.  We have not of course heard evidence but we have heard argument on the topic.  The principle of contact is not in issue.  Grandmother does not feel able to consent to overnight contact but one such visit has already taken place without suggested difficulty. It seems to me that we should make a brief interim order so that everybody knows where they are between now and 16 May.  There should be contact first of all on Tuesday to Wednesday, between 12 noon on the Tuesday and 1pm on Wednesday.  Wednesday is a nursery day and mother should return the child by taking her to the nursery on Wednesday.  Mother should also have contact with the child on Friday between 9 and 5.  Any other contact which can be agreed and which is approved by Mr Coke should also take place.  Mother should be responsible for collecting and returning the child on each occasion. For form's sake there should be liberty to apply for each party in the event of particular need and 48 hours' notice to the county court but I do not encourage further debate about contact unless something unexpected occurs.

28. For my part I would make that order precisely in order to preserve the position just for the next few weeks until 16 May.  I would make it on the basis that mother has the supported accommodation into which she moved on 17 April.  I should like to make it as clear as I can that, whilst we do not know the outcome of the hearing on 16 May and that is why it has to take place, it remains a real possibility that it will turn out to be in the best interests of the child for orders to be made enabling there to be assessment of mother and child together by the social worker for a period after that hearing.  If that turns out to be the best thing in the interests of the child it can only happen if mother retains the present supported accommodation at least until 16 May and thereafter if that is the order that the court should make.  It is outside our powers to dictate to the local authority how it allocates its accommodation and of course we do not know the competing claims that it is likely to have on limited resources but for my part I should like to make it as clear as I can that it is profoundly in the interests of this child that if at all possible the accommodation allocation which has been made should not be disturbed in the four weeks, no more, between now and the 16 May.

29. It is likely to put the child's future welfare at real risk if that accommodation cannot be maintained.

30. For those reasons that is the order which I will make, allowing the appeal to that extent.

Lord Justice McFarlane:
1.  I agree that the appeal should be allowed for the reasons that my Lord Hughes LJ has so carefully given.  I agree that the order that this court should make should be the detailed order that he has described and I would expressly associate myself with his final remarks about the importance of the mother, if at all possible, retaining the current accommodation until at least the hearing on 16 May.  I would add only one observation.  We are deciding this case on the particular facts and circumstances that arise from the hearing that took place on 14 March.  We do so at a time when the number of family cases in the family justice system is seemingly on an inexorable rise and where circuit judges, district judges and lay justices are having to cope with busy lists and are being required, by the pressure of the work and also encouragement from senior judges, to take a robust and interventionist role in the conduct of the work.  For my part nothing that we have said or given thought to in this appeal should discourage or inhibit the general approach that I have just described. Where a court is satisfied that it has the material necessary to determine an issue, and after the court has conducted a fair process, albeit maybe a robust and pragmatic process, during which all parties, particularly those who may oppose the order that the court has in mind, have been heard, then there is nothing to prevent a court at an early stage in proceedings making a determination of the sort that was made in this case.

2. For my part, for the reasons that my Lord has given, what took place before the county court on 14 March in this case was plainly on the wrong side of the line and for that reason I agree that the appeal should be allowed.

Lord Justice Thorpe:
3. I agree with both judgments. 

Order: Appeal allowed