Re En (A Child) (Special Guardianship Order)
| Jurisdiction | England & Wales |
| Judgment Date | 2008 |
| Date | 2008 |
| Year | 2008 |
| Court | Court of Appeal (Civil Division) |
Special guardianship order – Child victim of non-accidental injury by mother – Paternal grandmother caring for child for over three years – Application by paternal grandmother for orders in respect of grandchild – Judge refusing application – Whether judge in error.
The three-year old child, N, was admitted to hospital in circumstances which gave rise to care proceedings. He was discharged from hospital and placed into the care of his paternal grandmother. Care proceedings were commenced by the local authority, following a demand by N’s mother that he be returned to her care. The judge found that N had been the victim of various forms of non-accidental injury. He found that N’s mother was the perpetrator, and exonerated N’s grandmother. Litigation continued, and the real issue to be decided was whether N should remain living with his paternal grandmother, or be adopted outside of the family. Reports were produced by an independent social worker, and a consultant psychologist, O. The reports were not supportive of the grandmother’s case, and neither was the evidence given by the guardian in the case. The grandmother issued an application for a special guardianship order. The local authority initially supported the plan for adoption outside of the family, but later filed a report which was fulsomely supportive of the grandmother’s application. In his judgment, the judge was scathing in his criticism of that report and described it as ’wholly inadequate’. The judge considered the expert evidence in relation to the grandmother’s proposals to move to a new area, and in relation to that, O asserted that he was more optimistic about the prospect of the grandmother being able to parent N effectively and safely. In the event, the judge concluded that the benefits for N of a new future in a replacement family, in a new environment, outweighed the advantages of staying with the grandmother. Accordingly the judge refused the grandmother’s application for a special guardianship order, declined to approve the local authority’s care plan, and invited the local authority to re-consider its care plan. The local authority produced a final care plan which was approved by the judge and a care order was made. The local authority’s application for a placement order came before the judge and he re-examined the evidence in the light of the relevant welfare checklist, under the Adoption and Children Act 2002. The placement order was granted, on the basis that nothing had happened in the period between the care
proceedings and the application for a placement order to alter the conclusions that he had previously reached. The grandmother appealed against the judge’s refusal to grant her special guardianship order, an order placing the child for adoption and a refusal to make an order for contact. She contended that the judge had placed too much weight on the risk of future physical harm to N; that he had placed too much emphasis on the risk of emotional harm; that he had failed properly to weigh in the balance the long-term emotional and psychological harm to N of being removed from the care of his grandmother; and that he had failed to give proper weight to the views of O, the local authority, N’s father and the author of the special guardianship report.
Held – (1) In the instant case, the deputy judge cannot be faulted in his critical analysis of the special guardianship report. The deputy judge paid very careful attention to O’s evidence and accepted significant parts of his analysis. He was fully entitled to reject O’s recommendation, not least because he was not satisfied of the very matters which O had identified as a pre-requisite to implementation. The deputy judge was also entitled to conclude that further time should not be spent in testing the viability of the paternal grandmother’s proposals, not least given the risks of failure which he had identified. The deputy judge was entitled to decide as he did and for the reasons he gave. Accordingly, the appeals against the refusal of the special guardianship order and the making of the care order would be dismissed.
(2) In relation to the placement order, the deputy judge was well aware of the differences between the two welfare checklists and directed himself meticulously by reference to the checklist in the 2002 Act. Moreover, he was plainly entitled to find that there had been no material change in any of the relevant circumstances. In this situation, and making every allowance for the important differences between the two exercises and between the welfare checklists under the 1989 Act and the 2002 Act, it would have been little short of perverse if the deputy judge had refused to make the placement order which was necessary if the care plan he had approved only two months previously was to be implemented. The deputy judge was plainly entitled to decide as he did and for the reasons he gave. Accordingly, the appeal against the placement order would be dismissed.
(3) In relation to the deputy judge’s decision not to make a contact order, the deputy judge gave compelling reasons that although it was desirable that E should continue to have contact with both his father and his paternal grandmother that would, in the final analysis, and if adoptive parents could not be found who would agree, have to give way to the overriding imperative to find him an adoptive placement outside the family. Having reached that conclusion the deputy judge was entitled to conclude that no order was necessary. He had, properly, been critical of the local authority and had its previous shortcomings well in mind, but he was entitled to conclude that as
matters stood the local authority could be relied upon to honour the commitment spelt out in the care plan. Accordingly, the appeal would be dismissed.
AppealsThe paternal grandmother appealed against the judge’s refusal to grant her special guardianship order over the grandchild she had been caring for over three years, an order placing the child for adoption and a refusal to make an order for contact. The facts are set out in the judgment of Munby J.
Ruth Henke QC and Sheila Radcliffe (instructed by Caswell Jones) for the appellant (paternal grandmother).
Mark Allen (instructed by Legal Services, Caerphilly CBC) for the first respondent (local authority).
Catherine Heyworth (instructed by Nicol Denvir & Purnell) for the third respondent (father).
Paul Hopkins (instructed by The Gwyn George Partnership) for the fourth respondent (children’s guardian).
The second respondent (mother) was neither present nor represented.
Munby J.[1] We are concerned with a little boy, E, who was born in June 2003 and who is therefore now three and three quarters years old. On 12 November 2004 he was admitted to hospital in circumstances which subsequently gave rise to the care proceedings which we are asked to review. He was discharged from hospital on 18 November 2004 into the care of his paternal grandmother, with whom he has lived ever since. So he has been living with her for almost two-thirds of his life.
[2] Care proceedings were begun by the local authority on 17 January 2005, following a demand by his mother that E be returned to her care. Subsequently the proceedings were transferred to the High Court, where they and all the consequential applications have been dealt with by Mr Peter Hughes QC, sitting as a deputy High Court judge.
[3] There was a lengthy fact-finding hearing before the deputy judge. It commenced on 3 October 2005 and lasted for 13 days, ending on 16 November 2005. The deputy judge gave judgment on 1 December 2005. He found that E had been the victim of various forms of non-accidental injury, including two episodes of poisoning with amphetamine on 11 and again on 12 November 2004. He found that E’s mother was the perpetrator. He exonerated the paternal grandmother. Inevitably, in these circumstances, he found threshold established.
[4] It is important to note that although E’s mother has never accepted the deputy judge’s findings—she asserts that the paternal grandmother was the perpetrator and says there has been a miscarriage of justice—there is not, and never has been, any challenge in this court to the deputy judge’s findings
as set out in his judgment of 1 December 2005. But there has, in consequence, been a very serious rift between the maternal and paternal families.
[5] The litigation moved forward. As matters developed the only real issue was whether E should remain living with his paternal grandmother or be adopted outside the family. Reports were produced by an independent social worker, Pauline Lawrence, and by a consultant psychologist, Professor Ostapuik. Neither was supportive of the paternal grandmother’s case.
[6] Ms Lawrence drew attention to the rift between the two families:
‘There is a very deep rift between these two families. I formed the view that there is little chance of [E] being brought up with any sense of integration of the two sides of his identity if he remains living with [the paternal grandmother]. [The paternal grandmother]...
To continue reading
Request your trial
-
Re P (Children) (Adoption: Parental Consent)
...Health and Social Services Trust v H[2006] UKHL 36, [2007] 1 FLR 121. EN (a child) (special guardianship order), Re[2007] EWCA Civ 264, [2008] 2 FCR 229. F (a child) (placement order), Re[2008] EWCA Civ 439, [2008] 2 FCR 93. G (children: contact), Re[2002] EWCA Civ 761, [2002] 3 FCR 377, [2......
-
Re P (Placement Orders: Parental Consent)
...P-B [2007] 1 FLR 1106, referred to in para 34 above, and the decision of this court in In re EN (A Child) (Special Guardianship Order) [2008] 2 FCR 229. It is not so long ago that the grant of only a short adjournment between the making of a care order and the application to free a child fo......