Re D (Care: Natural Parent Presumption)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KENNEDY,MR JUSTICE SUMNER |
| Judgment Date | 17 July 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0717-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | No FC2 98/6490/2 |
| Date | 17 July 1998 |
[1998] EWCA Civ J0717-2
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF HIS HONOUR JUDGE CATLIN
Royal Courts of Justice
Strand
London WC2
Lord Justice Kennedy
Mr Justice Sumner
No FC2 98/6490/2
CCFMI 98/0544/2
MR R ANELAY QC and MISS J ROBINSON (Instructed by Messrs Charles Hoile of Newbury) appeared on behalf of the Appellant
MISS J PARKER QC and MISS K PRESTON (Instructed by Messrs Charles Lucas & Marshall of Newbury) appeared on behalf of the Respondent
MISS M McNAB (Instructed by Joint Social Services Legal Team of Reading) appeared for the Applicant
I will ask Mr Justice Sumner to give the first judgment.
This is an appeal against the order of His Honour Judge Catlin in care proceedings at Reading County Court on 13th February 1998. Leave was granted by Ward LJ on 6th April. The hearing lasted some 9 days. It concerned 3 children, Elizabeth D born on 26th May 1989, now 9 years of age, Joshua D born on 11th March 1993 and now 5 years of age and Alexander D born on 6th July 1995, now just 3 years of age.
They are all the children of the First Respondent, Debra D, who was born on 12th October 1972 and is therefore 25 years of age. The father of Elizabeth, William T, took no part in the proceedings. Joshua's father died before he was born. Alexander's father is the Second Respondent, Steven C. He was born on 10th July 1966 and is therefore 33 years of age. The Third Respondent is the children's maternal grandmother, Gillian F, now 45 years old and her husband, the children's step grandfather, Gordon F, who is 37 years old. They have been married for 4 years. The Fourth Respondent is the Guardian ad litem, Mrs Judy Lyons.
The children were brought up by their mother in the Newbury area until Elizabeth went to live with Mrs F, her grandmother, in April 1997. Mrs F lives in Cranfield, Bedfordshire. In June 1997 Joshua and Alexander were taken into care. They went to live with foster parents. The placement broke down in respect of Joshua at the end of December 1997 and he, too, went to live with his grandmother.
At the hearing the parties were represented save that the step grandfather, Mr F, appeared for himself and his wife. The parties' position was shortly as follows.
The mother accepted that the Local Authority had made out their case under Section 31 of the Children Act in respect of Elizabeth and Joshua. They had established the threshold criteria, as it is called. She did not accept that the threshold criteria was made out in respect of Alexander. She sought his return to her care. In the event that she was not successful in this claim, she supported a placement of Alexander with the grandmother, Mrs F.
The grandparents did not oppose the Local Authority's case in respect of Elizabeth and Joshua and supported their long term placement with them. In respect of Alexander, they did not consider the mother could cope with him and sought an order that he be placed with them.
The Local Authority, supported by the Guardian, sought a care order in respect of all 3 children. They accepted that Elizabeth and Joshua should remain in long term placement with the grandmother. They supported the father, however, in respect of Alexander. They considered that he should be looked after by the father under a care order which the father accepted.
The learned judge, in his judgment, held that the threshold criteria was established by the Local Authority in respect of all 3 children. He accepted that Elizabeth and Joshua should remain with the Fs. He did not, however, accept the unanimous recommendation by the Principal Social Worker, Miss Newman, a psychologist, Miss Stein, and the Guardian that Alexander should be placed with his father. He held that the proper place for him was with his grandmother. It is against that decision that the father, supported by the Local Authority, now appeals.
The appeal is opposed by the grandmother. She and the step grandfather have now received Legal Aid. They are both represented by leading counsel, Miss Parker QC. She seeks leave to rely on other factors not expressly covered by the judgment. I have considered those further matters. The mother was not granted Legal Aid for the purpose of this appeal and has not appeared.
In relation to the evidence of Miss Newman, Miss Stein and Mrs Lyons, the learned judge accepted their findings and recommendations in every respect with one exception (page 18 of his judgment):
"But I do not accept that, when making their recommendations in relation to Alex's placement with his father, that they have taken into account or, if they have, they have given proper weight to the fact of the relationship and bonding between the three children. If they had taken that into account and given it proper weight I do not understand why they each conclude that Alex should be placed with his natural father."
Later he said (page 21):
"I find that the compelling factor in this case is the support which these children can give to each other in the distressing situation in which they find themselves, distressing in the sense that they have been separated from each other and they are separated from their mother in whose care they have been for most of their lives."
There is now no dispute that the Local Authority established that both Elizabeth and Joshua had suffered significant harm in the care of their mother. In relation to Alexander it was the risk of significant emotional and physical harm if he were returned to his mother's care. Equally, it is accepted that Elizabeth and Joshua
should remain with the grandmother, Mrs F, at her home. The appeal hinges on the single but crucial aspect of the proper placement for Alexander. Should it be with his father and his third wife Nicola, together with her daughter Amelia now 5 years of age and their daughter Kya born on 12th February 1998, at their home at Greenham, Nr Newbury? Or should it be with the grandmother and his 2 older half-siblings at her home in Bedfordshire?
Before I turn to the judge's reasons I shall set out something of the background. I can do this quite shortly, though it does not readily appear in the judgment.
The mother had a traumatic upbringing whilst living with the grandmother. From the age of 10 until she left home at the age of 15 she was sexually abused by her step-father, Mr D. She became pregnant by him at the age of 13 and had an abortion. When she was 15 she left to live with her boyfriend, William T. It is said that the grandmother, who had been working full-time, was unaware of the abuse suffered by the mother.
The mother became pregnant by her boyfriend and gave birth to Elizabeth on 26th May 1989 when she was 16 years old. By then the relationship between them had broken down and she moved back to the grandmother.
The mother had a short and disastrous marriage in 1989 to an alcoholic which only lasted 3 months. In 1991, whilst still living in the Newbury area with Elizabeth, she was noted to be taking drugs. The grandmother was concerned and informed social services.
The grandmother separated from Mr D, and the mother then began an association with Darren C. He sadly committed suicide before his son Joshua was born to the mother on 11th March 1993. In October 1993 the mother and the father's association began. The father was taking drugs at the time. In June 1994 Elizabeth and Joshua's names were placed on the Child Protection Register because of marks noted on each of them. There were continuing concerns about the mother's care of the children.
In January 1995 the father and mother separated. In June of the same year the children's names were removed from the Register. The mother and father resumed their relationship in August 1995 and were married 2 months later. They separated in February 1996. On 6th July 1996 Alexander was born. Concerns about the mother continued. They focussed on undue chastisement by her, her mismanagement of the children, and concerns about the children's emotional development.
In April 1997 Elizabeth went to live with the grandmother. By this time the mother was barely coping. The two boys Joshua and Alexander were placed with foster parents in June 1997 after Joshua was found on examination to have slap and bruise marks. The grandmother felt unable to take the two boys at that time.
The mother was subsequently charged with causing Joshua actual bodily harm and duly convicted. She was given a 12 months probation order. Joshua joined his sister with the grandmother at the end of December 1997 when his placement with the foster parents broke down.
So far as the father is concerned, his background is as follows. He was married at the age of 18 but the marriage lasted only 3 years. There were no children. He then had an association with a girlfriend who left him when she was pregnant. He moved to the Newbury area and entered into a relationship with one Zoe Gardner, by whom he has 3 young children. He started living with the mother in October 1993 and, after a separation, finally left in February 1996. In June 1996 he met his present wife Nicola who is 23 years of age. They married in August 1997. Living with them is the wife's daughter Amelia and their own daughter Kya.
It is against that background that the hearing began before His Honour Judge Catlin in February 1998. Late on the evening of 12th February the learned judge indicated the broad findings that he proposed to find in his judgment to be given on the following day. He said (page 2 of the judgment):
"….. there are, in my view, compelling factors which require the court to override...
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