W (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Lawrence Collins |
| Judgment Date | 08 November 2007 |
| Neutral Citation | [2007] EWCA Civ 1255 |
| Date | 08 November 2007 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2007/1875 |
[2007] EWCA Civ 1255
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHELMSFORD COUNTY COURT
(HIS HONOUR JUDGE GYPPS)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe and
Lord Justice Lawrence Collins
Case No: B4/2007/1875
Mr D Barrett (instructed by Messrs Kerseys) appeared on behalf of the Appellant.
Ms A Thain (instructed by Messrs Fisher Jones Greenwood) appeared on behalf of the Respondent Mother; Ms A Courtney (instructed by Essex County Council) appeared on behalf of the Respondent Local Authority; Ms C Parry-Jones (instructed by Messrs Graeme Carmichael) appeared on behalf of the Respondent Child Guardian.
This is an appeal from the order of HHJ Gypps in the Chelmsford County Court, committing the care of S, born on 18 August 2006, to the local authority and granting a linked application for a placement order.
The appeal is brought by Mr Barrett for the J's, whom he represented in the court below. The appeal was directed by my Lord, Wall LJ on 4 October. He in his reasons emphasised the difficulty of challenging a care order made by an experienced judge, supported as the order was by professional opinion; but he continued:
“The facts are sufficiently unusual to make it appropriate for the matter to be listed for hearing.”
In particular it may be arguable that the judge did not give sufficient weight to the desirability of the child being brought up in her natural father's household. The unusual facts to which Wall LJ referred are these. Mr and Mrs J live as a family with their three children aged 15, 9 and 6. S results from an adulterous relationship between Mr J and S's mother, JW. The relationship was of relatively brief duration, between November 2005 and February 2006. At S's birth she was the immediate subject of a care order application, because her mother JW had lost two previous children as a result of the dangerousness of her partner. That history was of great continuing relevance, since the relationship between JW and her dangerous partner was a continuing one, and following S's birth JW asserted that her partner was the biological father. There were doubts and DNA testing resulted. Science proved that in fact Mr J was the natural father and accordingly he was joined in the pre-existing care proceedings, together with his wife C.
Another very unusual feature of the case is that the initiative for an application to permit S to be brought up in the J family came from C. It was fully supported by her husband; and that constitutes this case, as Mr Barrett submits in his skeleton, as an extraordinary case, one not previously encountered by any of the large number of professionals involved.
At the trial the battle line was drawn between the claim, passionately advanced by the J's, to offer S a permanent home with them, opposed by the local authority's care order application, supported by JW and also by the guardian. Now, there had been a degree of expert assessment. Joint instructions had been given to a clinical psychologist, Dr Bisbey, who had filed a report which was initially equivocal in its conclusion. However, the person who had greatest involvement with the J's was Miss Macken, from a local assessment centre. She too, in her report, was equivocal in conclusion. Final assessment was of course the assessment of the guardian.
In accordance with the protocol, an experts' meeting was fixed for 6 June and the discussions enabled the three experts to concur in a clear conclusion that the local authority's application for care and placement should succeed. It seems that that conclusion was held more firmly by Dr Bisbey and the guardian than by Miss Macken. So obviously when the case came for trial before Judge Gypps, the odds were stacked against the J's, with three experts rejecting their proposal and no contrary expert opinion available.
The judge heard evidence over the course of three days and delivered a succinct and well-expressed judgment on the fourth day. In that judgment he at once, having commended the J's as '…plainly thoroughly decent, honest people, who have kept their marriage and family together after a very difficult period and have come forward, very honourably, to offer a home for S within their family”, went on to express his clear conclusion that on the whole of the evidence:
“I am satisfied that that generosity of spirit is not enough and as a matter of fact, not fault, I am satisfied on the evidence that they cannot, in fact, meet her needs.”
The judge went on to identify threats which JW had made, particularly to burn the J's home. The judge recorded that in paragraph 13 of his judgment and in paragraph 29 added this substance:
“What I also learned from the Guardian, and indeed from Mr Jack [counsel for J], is that she has made threats to burn the Js' home, and that she has said recently that if they get...
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