Re B (Paternal Grandmother: Joinder as party)
| Jurisdiction | England & Wales |
| Judge | Black LJ |
| Judgment Date | 31 May 2012 |
| Neutral Citation | [2012] EWCA Civ 737 |
| Docket Number | Case No: B4/2012/0871 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 May 2012 |
[2012] EWCA Civ 737
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
Lord Justice Laws
and
Lady Justice Black
Case No: B4/2012/0871
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
This appeal concerns J who is 4 1/2 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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."
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.
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."
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...
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