Re N
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby,Lord Justice Thorpe,Lord Justice Lawrence Collins |
| Judgment Date | 28 March 2007 |
| Neutral Citation | [2007] EWCA Civ 264 |
| Docket Number | Case No: B4/2006/2489 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 March 2007 |
[2007] EWCA Civ 264
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
NEWPORT (GWENT) DISTRICT REGISTRY
Mr PETER HUGHES QC (sitting as a Deputy High Court Judge)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Lawrence Collins and
Mr Justice Munby
Case No: B4/2006/2489
& B4/2007/0444
Ms Ruth Henke QC and Ms Sheila Radcliffe (instructed by Caswell Jones) for the appellant (paternal grandmother)
Mr Mark Allen (instructed by Legal Services, Caerphilly CBC) for the first respondent (local authority)
Ms Catherine Heyworth (instructed by Nicol Denvir & Purnell) for the third respondent (father)
Mr Paul Hopkins (instructed by The Gwyn George Partnership) for the fourth respondent (children's guardian)
The second respondent (mother) was neither present nor represented
Hearing date: 15 March 2007
Mr Justice Munby (giving the first judgment at the invitation of Lord Justice Thorpe):
We are concerned with a little boy, E, who was born on 8 June 2003 and who is therefore now 3 3/4 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.
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.
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.
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.
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.
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] trusts in her own instincts and has a track record of doing things her own way. In the last year she has taken advice and complied with professional thinking.
… There is still time prior to a final hearing for the parties to consider their positions. If conflict remains the hallmark of the interaction between the two families, it is my view that [E]'s needs might not be able to be met within a family placement, despite [the paternal grandmother]'s best intentions.”
Undaunted, on 10 August 2006 the paternal grandmother issued an application for a special guardianship order.
The final hearing started in September 2006 but in order to accommodate Professor Ostapuik's commitments his evidence was heard first on 11 August 2006. His position remained fundamentally unaltered. He identified the advantages of an adoptive placement but, as against that, recognised the disadvantages of disruption, loss of E's primary attachment to the paternal grandmother and the potential for long-term attachment difficulties. However, on balance, he favoured placement outside the family and expressed the view that E had the capacity to develop positive and healthy new attachments in an adoptive family. He said that:
“on the basis of all the information that I have at my disposal I would have to agree that [E]'s interests would be better met in the long term by an adoptive placement.”
But he did identify the possibility of a different outcome if the paternal grandmother was able to “relocate somewhere quite distant, which … breaks all the family ties.”
This caused the paternal grandmother to implement the plan which she had been toying with since January 2006. She decided to move about an hour's drive away from the area where she and the maternal family had all previously been living. Her commitment to E is illustrated by the fact that in order to achieve what she believed—and still believes—is best for him she was and is prepared not merely to move away from the community in which she has spent her life but to leave behind there her own partner. At one stage she was also prepared to contemplate leaving behind the 15 year old niece whom she has been fostering for over nine years.
The hearing resumed on 6 September 2006. Very shortly before, on 1 September 2006, the local authority executed what the Deputy Judge understandably described as a total turnabout which took everyone by surprise. What had been intended to be the local authority's care plan had been filed on 31 July 2006. The plan was for adoption outside the family. The local authority's position at that stage was that it could not support the paternal grandmother's application for residence. But on 1 September 2006 the local authority filed a report for the court on the special guardianship application fulsomely supportive of the paternal grandmother's application.
In the judgment which he delivered on 3 October 2006 the Deputy Judge was scathing in his criticism of that report, pointing out the marked contrast it represented with the views expressed only a month earlier by its author in her witness statement supporting the local authority's plan for adoption. He described the report as “wholly inadequate” and noted that it did a potential disservice to the paternal grandmother's case in unduly raising her hopes and expectations. Nonetheless, as the Deputy Judge was careful to point out, whatever criticisms might be levelled at the local authority, it was “vital” that the paternal grandmother's proposals for E's future be examined on their merits. And that was the task he set himself.
There was a further report from Ms Lawrence. The Deputy Judge heard evidence from Ms Lawrence, further evidence from Professor Ostapuik and evidence from E's children's guardian. Neither Ms Lawrence nor the children's guardian felt able to support the paternal grandmother's case.
The Deputy Judge correctly identified the two core issues as being (i) the risk, if any, E's mother might pose to E in the future and its relevance, if any, to the proposals for his future care and (ii) the viability of the paternal grandmother's proposals.
Dealing with the issue of risk, the Deputy Judge found himself bound to agree with the guardian's conclusion that not only would E's mother be likely to try and undermine the paternal grandmother's role as primary carer, but that E would be at risk of further physical harm from her.
The Deputy Judge also agreed with the opinion expressed by Professor Ostapuik in his evidence on 11 August 2006 that, however protective the paternal grandmother might try to be, as E develops he will be “constantly faced with an unresolved conflict between significant people in his life,” which “would be a source of tremendous emotional distress for him.” Without a significant change in the relationship between E's mother and his paternal grandmother, the relationship was likely to be fraught with difficulty, giving him (the Professor) grave concerns that E would be drawn into the conflict. The conflict was not going to disappear, E would remain the focus of it, and there would be animosity between the two families about the sharing of his care.
The Deputy Judge concluded as follows:
“In summary, the risk of harm to [E] that [his mother] poses is a risk of further physical harm and, arguably of more significance, of long-term emotional harm because of the unresolved conflict between the two families.”
Turning to consider the viability of the paternal grandmother's proposals, the Deputy Judge carefully considered the expert evidence.
Ms Lawrence did not see E moving away from the area with his paternal grandmother as the solution. It put things on the back burner without resolving issues about E's identity and his image of his maternal family. In her oral evidence she said:
“Stranger adoption offers [E] more space to be able to assimilate and integrate the whole story into the rest of his life. [The paternal grandmother] does not have the perception or skills to manage...
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