Re E-R (A Child)
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Lord Justice Laws |
| Judgment Date | 24 April 2015 |
| Neutral Citation | [2015] EWCA Civ 405 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2015/0589 |
| Date | 24 April 2015 |
[2015] EWCA Civ 405
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Truro County Court
His Honour Judge Vincent
TR14P00461
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
and
Lady Justice King
Case No: B4/2015/0589
Clare Renton (instructed by Stephen Scowns LLP) for the Appellant
The Respondent was not represented
Hearing date: Monday 13th April 2015
This is an appeal from a child arrangements order made by His Honour Judge Vincent at the family court sitting at Truro on the 30 th January 2015. The judge's order provided for a little girl, T, born 22 July 2009 (5 years 9 months) to move to live with TR (her father), and JB (his partner) and, thereafter, to have extensive contact with the Appellants with whom T and SH (her mother) were currently living. The judge dismissed the Appellant's application for a special guardianship order in respect of T. The unusual and tragic feature of the case is that the variation of T's current living arrangements provided for by the order were to take effect only upon the anticipated death of T's mother.
The principal issue in the appeal turns on whether the judge had erred in law, having conducted his welfare analysis on the basis that there was "a broad natural parent presumption in existence under our law". The Appellants appeal only the child arrangements order and do not appeal the judge's refusal to make a special guardianship order.
Background
The parents were in a relationship from 2007. When T was born in July 2009 the father's name appeared on the birth certificate and he has therefore had parental responsibility throughout T's life. The parents separated in March 2011. In September 2011 when T was 20 months old, the mother then aged 44, was diagnosed with terminal breast cancer; an attempt on the part of the couple to reconcile in the light of the mother's diagnosis was a short lived.
The separation was acrimonious, a restraining order was made against the father on the 17 January 2012 and in March 2012 he was fined for breach of that order. The relationship finally came to an end in November 2012 and not long after that the father left Cornwall to take up residence in Suffolk. To all intents and purposes the father then lost contact with T and did not see her again until November 2014.
The father is now in a new relationship and lives with his partner of two years JB and her two teenage from an earlier relationship. The father has had some information about T's progress as until latterly, T has had contact with her half sister I, another daughter of the father who lives with her mother near to T in Cornwall.
In relation to the father's failure to maintain contact with T following his relocation to Suffolk, the judge said:
"It is fair to say that his evidence was at its weakest over his commitment to T once the strict restraining order has been put in place. On any view he was not proactive and his explanation of the difficulties in his way was not really adequate, viewing it from T's perspective. There was a sense however of resignation in him to M's negative view of him. One has to ask oneself just when he would have put his head above the parapet in T's life had the appellant not made her application. In all possibility that would have been when the mother had died which would have left him, at best as a dim memory in T's life."
The appellants are husband and wife and were friends of the mother's. As her condition worsened the mother and T increasingly relied upon them for support. Initially the mother and T would stay for weekends but in June 2014, as the mother's condition deteriorated, they moved to live with the appellants at their home in Cornwall. SJH (the female carer), has now been T's primary carer for 10 months. T attends a local school from which there are glowing reports.
It is hard to imagine how it must have been for this mother to have to face the knowledge that her death was inevitable and that she must leave her young child to be brought up by someone else. By the time of the hearing she had already survived for significantly longer than her original prognosis and inevitably her thoughts were much exercised as to the future of her child once she died; she felt bitter towards the father who she felt had deserted her and T and wished him to have no part in T's life.
The mother in preparation for her death, named the appellants as testamentary guardians of T. More than anything the mother wanted T to remain with the appellants, believing her to be safe, secure and settled with them; with them the mother felt that T would be best placed to come to terms with the loss and grief that she would suffer after her death.
The court was told this morning that the mother died a week ago on 5 April 2015; one can only deeply regret that she died with this appeal outstanding and without knowing who was to care for her daughter following her death.
The Proceedings
In August 2014, at a time when the mother's death appeared to be imminent, SJH issued an application for a special guardianship order. The judge made a without notice interim child arrangements order so as to confer parental responsibility on SJH in case that the mother died before the return date. The father issued a cross-application for a residence order on the 28 August 2014.
At a case management hearing on the 16 September 2014, the judge directed the preparation of reports in relation to SJH's application for a special guardianship order and a s7 welfare report in relation to residence. These reports were prepared by a Mr Frankie Brannan who was directed to attend the hearing. Unfortunately Mr Brannan, who retired shortly before the hearing, was on holiday and unable to attend the trial. His attendance was excused by order of the District Judge, despite a request by solicitors for the mother and the appellant that the matter be re-fixed for a time when he was available.
On 16 September 2014 the judge ordered that contact should start as of the 29 November for 3 hours on both Saturday and Sunday fortnightly. The judge found in relation to the reintroduction of T to her father:
"Those (contact) records display to an impartial reader a child who is struggling to come to terms with the resurrection of her relationship with her father. They also display understandably a father who is having to learn again what makes T tick. "
Mr Brannan's Reports
The special guardianship report recognised that whilst T has a strong network around her, it would nevertheless come as a great shock with "devastating reverberations" when her mother died. Mr Brennan made the obvious observation that it will be at that time that T will require the greatest support. He referred also to the fact that T may need support of a biological parent and of specialist support both to grieve and to come to terms with the fact that the mother will no longer be with her. There is no analysis as to the father's ability to provide T with that support given his open hostility towards the mother.
Mr Brannan (and the judge) did however refer to the animosity and hostility of the father to the appellants, which hostility is evident from the skeleton argument filed by the father in this appeal. Mr Brannan, in the context of numerous unsubstantiated and serious allegations made by the father about the appellants, expressed his concern that the father may:
"have already created irreparable damage in the relationship between himself and the appellants in which case there is a real possibility that if T remains with the Appellants, any future contact he may have with T would not be of the quality or frequency that would allow a real bond to built between father and daughter."
At the conclusion of the special guardianship report, Mr Brannan said:
"There is a real danger that if a special guardianship order is made in respect of the appellants then the father will lose contact with his daughter, it is for this reason only that a special guardianship order is not recommended in this case."
Having recommended that a special guardianship order should not be made, Mr Brannan also filed a s7 welfare report in relation to T's future living arrangements. That report contains little if any analysis notwithstanding that he refers to the case as a "complex and difficult case with ethical issues at its heart". Within the report there is no reference to the care T is currently receiving or any assessment of the impact upon her of a change of primary carer immediately upon the death of her mother. In relation to the potential relationship between the appellants and the father, Mr Brannan speculates that most of what the appellants know of the father is tainted by the relationship he had with the mother, but goes on to say that the father "does not do himself any favours by making allegations against both the appellants that are at best spurious. It is this side of his nature also that has seen him being made subject to a restraining order".
Having said (as noted above) in his special guardianship order report, that the only reason not to recommend a special guardianship order was the fear that contact could not be promoted with the father, Mr Brannan thereafter said within his s7 report, without further analysis that
"to lose one parent is a disaster, the court should not make this into a tragedy for T by losing the other parent. I would therefore respectfully recommend to the court that there be a child arrangements order made in favour of the father with T respectfully placed in his care...
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