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B (A Child) [2012] EWCA Civ 858

Appeal from a residence order made in favour of a paternal grandmother concerning a girl, aged almost 5 at the time of the appeal hearing.

Following the parents' separation their daughter Katy remained in the care of her mother. The mother made serious allegations of domestic violence and abuse against the father and paternal grandmother and was opposed to any contact between Katy and the paternal family. 

In the event, the father applied for contact and the paternal grandmother applied for interim residence and contact. Orders for contact were made but disobeyed by the mother. In the context of enforcement proceedings, the mother's capacity to litigate was assessed and although she was found to have capacity, it was determined that she required protection during the proceedings through attendance of the community practice nurse and the ability to give evidence by video-link.

A fact-finding hearing was due to take place on 11 August 2011 but the CPN and the mother's counsel were unavailable. Nevertheless, the trial judge refused an application for an adjournment and in the circumstances the mother chose to compromise the case against the father by way of certain concessions and did not proceed on findings sought against the paternal grandmother. The judge then made an order for fortnightly contact that was again disobeyed by the mother.

At a subsequent hearing, the mother "erupted" emotionally and threatened to abandon Katy, although in the event she did not do so. Very shortly thereafter, the paternal grandmother issued an application for residence and directions were made for assessments of the mother and grandmother and a risk assessment of the father by the local authority.

At the hearing of the grandmother's application, the local authority witnesses did not support a change of residence in light of the emotional harm it would cause. The mother's counsel sought for the compromised allegations to be reopened in light of the way the case had developed. The trial judge refused that application and made a residence order in favour of the grandmother, finding that the mother had demonised the father and paternal grandmother and would not support contact. The essential basis for the judge's conclusion was that it was better for Katy to live with her paternal grandmother and have contact with her mother than to live with her mother and have no contact with the paternal family.

The mother appealed; permission was granted and the residence order stayed. Thorpe LJ, giving the judgment of the court, allowed the appeal. While reluctant to interfere with the discretion of the trial judge, this was a very unusual case and significantly different from the more well-known scenario of a transfer between parents. The trial judge had been wrong to refuse to reconsider the history of the parties' relationship in light of the context of the paternal grandmother's application and given the potentially traumatic consequences for the child of a transfer of residence. A retrial was ordered and the trial judge urged to consider appointing a guardian for Katy.

Sumary by Stephen Jarmain, barrister, 1 Garden Court Family Law Chambers


Case No: B4/2012/0899
Neutral Citation Number: [2012] EWCA Civ 858
Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday 3 May 2012



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(DAR Transcript of
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Ms R Langdale QC and Ms M Allman (instructed by Williscroft & Co) appeared on behalf of the Appellant Mother.

Ms S Singleton QC and Mr G Shelton (instructed by Switalski Solicitors) appeared on behalf of the First Respondent Paternal Grandmother.

Ms C Shields appeared on behalf of the Second Respondent Father.

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(As Approved by the Court)

Crown Copyright ©

Lord Justice Thorpe:
1. On 18 April HHJ Cliffe sitting in the Bradford County Court granted a residence order in favour of the paternal grandmother of a little girl, Katy, who was born on 12 June 2007.  The judgment followed a four-day hearing of the grandmother's application for a residence order which had commenced on 29 February and concluded on 8 March.  The parties before the court had been only the first respondent mother and the second respondent father.  These being private law proceedings, Katy was not separately represented.  Given the fineness of the issues that seems to me a deficit.  It would have been better had she been separately represented.  However, the judge at least had the benefit of detailed evidence from members of the Bradford City Council Children's Department, a manager, Mrs Gadsdon, a Mr Burden who pursuant to the judge's earlier directions order of 14 October 2011 had carried out a risk assessment on the father and a core assessment of the grandmother's and mother's ability to care.  The grant of the residence order involved the transfer of Katy from the primary care of her mother who had cared for her throughout save for a brief period when she became unwell. 

2. An application by way of appellant's notice was filed with this court on the same day supported by grounds of appeal.  They were put before McFarlane LJ on the following day, 19 April, when he ordered that permission be granted, that the residence order be stayed pending the conclusion of the appeal and that the appeal had to be listed in this week commencing 30 April.  In support of the appellant we have heard able submissions from Ms Langdale QC for the mother, ably responded to by Ms Singleton QC for the grandmother.  Ms Shields appears for the father principally in a supporting role and such submission that she makes supports Ms Singleton.

3. It is necessary to turn to the chronology.  There can be no doubt at all that the relationship between the parents was, at a minimum, turbulent.  Following separation there was no doubt at all that Katy would remain with and be cared for by her mother.  The issue throughout is whether there should be contact between Katy and her paternal family, regarded by the mother as being abusive and dangerous.  The first application was by the father for contact issued on 6 July 2010, followed on the next day by an application for the grandmother for interim residence and contact.  A contact order was made at a time when the mother was not present or represented and, indeed, at a time when she was in hospital.  Contact then developed, supervised, during September and October to a hearing on 23 November, the first occasion on which the mother was either present or represented.  From that hearing emerged a contact order.  The first period ordered took place.  Thereafter the mother disobeyed the court's order, leading to an application for directions which resulted in a penal order attached to the grandmother's contact.  The grandmother obtained an enforcement order which was subsequently set aside on appeal and a direction given for an expert to assess the mother's capacity to litigate.  The outcome of that report was that the mother had capacity but needed protection.  The community practice nurse would need to attend any hearing to support her and she would have to give evidence by video link.  Since there were serious allegations of domestic violence and abuse, arrangements were made for a fact finding hearing which was set down for 11 August.  On 26 July application was made to adjourn on the ground that on that date the community practice nurse was not available nor was the mother's counsel.  However, the application was refused and on 11 August the mother attended without the community practice nurse and represented by other counsel who she had only just met.  In the circumstances the mother did not feel she had the strength for a contest.  She compromised against the father by obtaining a series of concessions on the Scott schedule.  She sought no concessions from the grandmother in respect of any of the ten items raised on the Scott schedule.  There emerged also an order for fortnightly contact with review on 6 October.  The mother disobeyed the contact order and the grandmother issued an application for enforcement of the penal notice. 

4. There was a review hearing provided by the order of 11 August and that took place before HHJ Cliffe on 6 October.  It seems that, as happens not infrequently in highly charged family proceedings, the mother erupted, walked out of court threatening that she would abandon her daughter to other family members.  That provoked the judge to indicate that he might transfer residence at the next hearing which he set for 14 October, some eight days later.  The mother did not act out her threats but duly collected Katy from the school gate.  The grandmother on 12 October issued an application for residence.  On 14 October the judge adjourned that, ordering the social work assessments that I have already identified.  At a further hearing on 25 November the judge fixed the grandmother's application for hearing with a three-day time estimate to commence on 29 February. 

5. The judge's reserved judgment is comparatively brief given that he had conducted a trial on oral evidence over four days.  He set the scene, detailing the family background and the litigation chronology thoroughly, and turned to review the evidence that he had heard at page five of the judgment.  He also considered a report that had earlier been submitted by a Dr Mortimer.  He comes to his conclusions between paragraphs 50 and 65.  In paragraph 50 he described the grandmother as "very worthy and committed" and she had had a close and loving relationship with the child until it was fractured by the mother's unreasonable conduct in late 2010.  He continued:

"That relationship was very important to the child and she will have suffered emotional harm as a result of its abrupt interruption". 

6. In paragraph 52 he was highly critical of the mother.  He described her as being:

"…unable to think objectively about the welfare of the child.  She speaks negatively about the father and the grandmother and with a vehemence that is striking.  It is unlikely that the child has been entirely isolated within the home from the emotions of the mother.  This is in no doubt in part the result of the mother's mental health difficulties and it is also because of what Professor Mortimer refers to as her 'prejudice against the grandmother'.  Nevertheless there is no logical basis for the mother's hostility towards the grandmother.  It is unreasonable and does not serve the interests of the child."

7. In paragraph 54 he said:

"It is clear on the evidence that the mother has demonised the father and the grandmother in the eyes of the child who must be confused and suffering ongoing emotional harm as a result of the mother's behaviour.  If the child remains with the mother she will never have a relationship with the grandmother or any member of the paternal family.  This will have a profoundly adverse impact on the child's emotional development."

8. In paragraph 56 he says:

"The mother has no constructive proposals to put forward and therefore the emotional harm to which reference has already been made is going to continue indefinitely if the child remains with the mother who is clearly putting her own needs before those of the child.  On the other hand, if the child were to be placed with the grandmother then she would faithfully promote contact between the mother and the child, facilitated by Social Services."

9. His ultimate rationalisation comes at paragraph 64:

"However there are marked differences in their respective abilities to secure the emotional health and development of the child in the future.  The mother's determination that the child should have no contact with the paternal family has no doubt damaged the child and continues to do so and what is more the mother insists that she will continue to deny contact in the future.  The grandmother on the other hand is far more attuned to the emotional needs of a young child and would ensure regular and generous contact with the mother.  If the child continues to be subjected to the mother's inflexibility, then it will inhibit the child's emotional development.  The grandmother's less rigid and more reasonable approach will better serve the medium and long term emotional development of the child and it is largely on this issue that I have decided that the best interests of the child will be served by her residing with her grandmother.  To put it in a nutshell, it is better for the child to live with the grandmother and have contact with the mother than to live with the mother and have no contact with any member of the paternal family.  It is the issue that tips the balance and why I have decided to depart from the recommendation of the local authority."

10. Ms Langdale really advances three principal arguments.  She emphasises that the local authority had a clear position on the choice confronting the judge.  It was succinctly explained by the team manager when, at page 54 of the transcript, she said:

"When we are talking about disrupting a child of this age, taking away from the person who has been her care giver the majority of her life, with whom she has a strong attachment, around whom and around whose home all her relationships are built, on balance we would say: yes, leave her where she is.  It is hard, it is difficult, but the emotional harm moving her at this age to somebody she does not know for purposes of keeping contact with both sides of the family seems too extreme a move to make for her at this stage."

11. Ms Langdale particularly criticises the judge's refusal to permit her junior to investigate any of the history so vital to justify the mother's convictions because the judge refused to re-open the door that had been closed by the compromise on 11 August.  That resulted in procedural unfairness, says Ms Langdale, and she further criticises the judge for treating the mother as implacably hostile when that lacked the ordinary, necessary foundation of clear findings following investigation of the relevant history, not only during the relationship but in its aftermath.  Lastly she would say that the judge was plainly wrong and failed sufficiently to explain why he rejected the clear recommendation of the experts in the case. 

12. I confess that I have found the resolution to this appeal extremely difficult.  The security of the outcome of the fixture on 11 August seems to be impaired by the very difficult circumstances that confronted the mother on that day.  The expert opinion as to her capacity made it plain that she was vulnerable and that she required protection.  The protection that she needed was not there for her.  I am concerned that the regrettable outburst from the mother on 6 October seems to have triggered a chain.  The grandmother ups her case from application for penal notice to application for residence order.  All that was achieved on 11 August was in the context of what were only applications for contact.  Once an entirely graver case was presented to the court -- namely a case for transfer of care from mother to grandmother -- was it safe to say, "Well, the past has been investigated to the extent that the parties compromised the fact finding hearing on 11 August and therefore no further inquiry is necessary"?  Did the judge sufficiently explain why he rejected the clear advice from the social work team?  He expressed a different conclusion but he did not perhaps sufficiently explain why.  Implicitly his explanation is that he assessed the features upon which the balance turned differently.  He concluded that the harm to the child in the past interruption was altogether profounder than had been the opinion of the social workers and he concluded that the mother bore heavy responsibility for the past and he assessed the consequences of transfer from mother to grandmother as less severe.

13. I am very conscious of the fact that the exercise of the discretion of this kind is very much for the trial judge.  This court may conclude that it or individual members would not have reached that discretionary conclusion, but that is no basis for interfering with a permissible exercise of discretion in the court below.  I would further observe that the transfer of contact from the obdurate parent to the alternatively available parent is a weapon of last resort which is sometimes used successfully and sometimes used unsuccessfully by trial judges, but that is a transfer as between parents.  I know of no case in which such a dire sanction has been exercised against an obdurate parent to transfer the primary care to a grandmother.  Manifestly grandparents are not on equal footing with parents.  Statute requires an application for leave before a grandparent may make application.  Inevitably there are disbenefits for a child to be brought up by an adult of a different generation to either of her parents. 

14. I have not found it easy to reach a conclusion on the argument advanced by Ms Langdale and the very well presented response from Ms Singleton that all that was done by the judge was part of a course of continuous management, and none of the arguments dent his ultimate discretionary conclusion.  I have ultimately come down to conclude that the judge could not make these negative findings against the mother or these positive findings in favour of the paternal family without acceding to the application that was strenuously and persistently advanced by Ms Allman for him to look into the history not in the context of an application for contact but of an application for the transfer of primary care of this little girl from mother to grandmother, with the consequences which would be inevitably traumatic for the child, as emphasised by the local authority. 

15. Ultimately I would allow the appeal and direct a more extensive re-trial to give the judge a better opportunity to make a balanced assessment of the respective merits and demerits of, on the one hand, the mother and her family and, on the other, the grandmother and her family.  If the mother is correct in her conviction that her antipathy to contact is a direct product of what she experienced in the relationship at the hands of the father and his mother, then obviously criticism of her must be muted.  If the things that are asserted against the paternal family have foundation then the judge's positive assessment of the paternal family has to be re-evaluated.  I regret coming to this conclusion.  It is always regrettable when this court has to order a re-trial, but I would not feel comfortable in allowing the appeal and setting aside the order on the grounds that the judge was plainly wrong, nor would I feel comfortable in simply dismissing the appeal as Ms Singleton submits.  Obviously the order of the 18th is set aside so the child stays where she is and I would urge consideration at the first directions appointment of the introduction of a guardian for Katy in the remitted trial.

Lord Justice Laws:
16. I agree that the appeal should be allowed for the reasons given by my Lord and I concur in the directions proposed by him.

Order:  Appeal allowed.