L (a child), Re [2007] EWCA Civ 196

[2007] EWCA Civ 196

Case No B4/2006/2191

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM FAMILY DIVISION

MRS JUSTICE BLACK

FD05A00324; FD202/05

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 13th March 2007

Before

THE RT HON. LORD JUSTICE WARD

THE RT HON. LORD JUSTICE WILSON

THE RT HON. LORD JUSTICE TOULSON

In the matter of:

L (A Child)

Hearing Hearing date: 29th January 2007

The Grandparents appeared in person

Mr John Tughan (instructed by Goodman Ray) for the mother

Miss Kerstin Boyd (instructed by Oliver Fisher) for the father

Miss Laura Harris (instructed by White & Sherwin) for the Guardian/child

Miss Anna McKenna (instructed by London Borough of Wandsworth) for the Local Authority

Judgment

Introduction

[1]This matter comes before us on the directions of Wall L.J. that the application for permission to appeal certain parts of the order made by Black J. on 7th September 2006 be heard on notice to the respondents with the appeal to follow if permission is granted. The applicants are the maternal grandparents (“GP”) of the child concerned, (“E”, to give her the initial of her nickname) who is just three years old. E was made the subject of a special guardianship order (“SGO”) in favour of GP and no one appeals that part of the order. GP do, however, seek to challenge the orders(1) refusing permission to change E’s surname;

(2) directing that the contact to be afforded to E’s mother (“M”) on six occasions each year to be supervised by the Local Authority (“LA”);

(3) providing for indirect contact with E’s father (“F”) and

(4) refusing permission to disclose the papers to a psychiatrist.

[2]It is a particularly sad and troublesome case. In a few words the besetting problem is the parents’ drug addiction as a result of which E was placed with GP in April 2004 when she was barely three months old, an interim residence order being made in their favour on 19th April and a full residence order being made on 21st September 2004 with contact to M at the discretion of GP and supervised by them but with no contact to F. GP are determined to protect E from any exposure to her parents which would undermine her long-term stability now cemented by the SGO. They see the orders under attack by them as an invasion, indeed a negation, of the parental responsibility which now vests in them, the parents’ responsibility being curtailed, though not extinguished, by operation of the SGO. They contend that they have demonstrated that they are responsible carers who should, therefore, be entrusted to exercise their parental responsibility wisely and in the interests of E without oversight from the LA.

Background

[3]The maternal grandmother (“GM”) is now 56, her husband, the step-grandfather whom I shall nonetheless for convenience abbreviate to “GF”, is 58. They were married in 1980. They are an intelligent, well-educated devoted couple who live comfortably in a large house in Putney, each of them working part-time from home when not sharing the day-to-day care of E. GM has a degree in psychology and child development and has worked as a teacher and on educational television programmes. GF has worked and lectured on film animation with the highest conspicuous success. He now has an art studio at home. A sprightly 93 year old maternal great-grandfather lives with them.

[4]GM has two children from her former marriage to Mr V which was dissolved in 1978, M, born on 20th September 1973, so now 33 years old and J, a son, born in 1975. They were brought up by GM and GF and as young children adopted GF’s surname, “S”.

[5]M is herself an intelligent articulate young woman educated at a well known London private girls school and at a London Art College. Sadly her life has been blighted by drugs. She first smoked cannabis at 14 and progressed onto LSD and ecstasy, eventually succumbing to heroin, cocaine and crack cocaine.

[6]In 1995 M married a Mr K in the United States of America and there is considerable uncertainty as to whether or not that marriage has ever been dissolved. She seems almost to have treated it as a nullity as she contends it was merely one of convenience to secure her Green Card and so prolong her stay in the United States.

[7]In about April 2002 M met F, himself a drug addict, and they married, GM fearing bigamously, in September 2003. E was born on 14th January 2004.

[8]F is 34 years old. He is of an African-Caribbean background, his parents living in St Lucia in the West Indies. He started using cannabis at the age of 15 and in time became addicted to crack cocaine. He has a petty criminal record going back to 1988 but he has served a term of imprisonment. We are told that proceedings are likely to be taken against him in view of his failure to report as required by a supervision order imposed on him on 24th July 2006 for his failure to comply with the terms of a community punishment order.

[9]M has from time to time made a number of attempts to stop using drugs and seems recently to have made a more determined effort to abstain. She says she has not indulged since February 2005. There may be less confidence about F’s rehabilitation. He says he last used drugs in January 2006. Black J. found that he had been receiving professional assistance “although he has not always complied with the expectations for attending the various programmes”. Nevertheless the latest report before her recorded his “making great progress”.

[10]The relationship between M and F has been tempestuous. The police have been involved in many calls of domestic violence. At the time of the hearing in a court below they had apparently separated but as

the judge noted:

“It is the last in a line of separations which, in the past, have always concluded with reconciliation.”

From what we can gather another such reconciliation has taken place but the violence which characterises their relationship has not ended: the police were called the weekend before this appeal started. Their domestic situation is quite obviously a highly volatile one.

[11]As

the judge found:

“The grandparents have what appears to me to be an entirely genuine fear of [F]. I do not consider this to be irrational in any way. It is founded on the way he has behaved in the past. It is no doubt compounded by their very long, painful and unpredictable personal experience of the impact of drug misuse on individuals and their families. … It is understandably likely to take a considerable time before the grandparents can feel sanguine about him.”

On 3rd November 2005 they were granted an injunction restraining him from using or threatening violence against them and from entering or approaching within 50 metres of their home. A power of arrest was attached to that order which continued until 3rd May 2006. Under the terms of a Prohibited Steps Order, F was also restrained from approaching E or removing her from GP’s care or from any school or nursery she might attend. At the hearing before Black J., F did not oppose the renewal of these orders. The judge therefore ordered them to be continued. Due no doubt to an oversight when this order was drawn, no power of arrest was included as by virtue of s. 47 of the Family Law Act 1996 it ought to have been. I do not understand F now to object to the injunction being varied so as to include such a provision.

[12]M struck the guardian and the judge as a young woman “determined and passionate about her recovery and desire to care for E”. The judge found that:

“Although she was extremely articulate and at times thoughtful when she was giving evidence, her presentation whilst in court was almost like that of an adolescent.”

[13]Although the consultant psychiatrist did not consider that M had a personality disorder, nonetheless both the guardian and

the judge detected in the mother all the characteristics of that condition in that M displayed:

“a marked tendency to act unexpectedly and without consideration of the consequences; a marked tendency to quarrelsome behaviour and to conflicts with others, especially when impulsive acts are thwarted or criticised; and liability to outbursts of anger or violence with inability to control the resulting behavioural explosion; difficulty in maintaining any course of action that offers no immediate reward; unstable and capricious mood.”

the judge decided:

“Whether or not this should lead [the psychiatrist] to review her assessment of whether M had a personality disorder, it does underline the significant problems in M’s personality which are bound to have an impact on her relationship with [E] and with GM.”

[14]Her relationship with GM must have been beset with difficulties for many years. She made comments about her mother which were “derogatory and at times vicious” yet she could with a laugh also say, “We are close as well in spite of all the problems in our relationship.”

The judge was:

“struck by the degree of raw agitation and excitability that attends [this case] as well as by the strongly competing emotions of love, dependency and conflict that exist in M and GM. … It seemed to me that this litigation is the tip of an iceberg. M and GM have between them a whole lifetime of issues which have yet to be resolved …”

[15]As to the parents’ drug misuse,

the judge recognised that:

“Both parents have long and serious histories of drug misuse and addiction. Despite their recent progress nobody, least of all the parents themselves I suspect, can yet feel confident that that period of their lives is over.”

[16]Although the judge was satisfied that M was further into her recovery than F and to that extent the outlook is somewhat more optimistic, “no assumptions can be made at present about whether F will succeed in remaining free from drugs and mature into a responsible person who can shoulder all the burdens of his complicated life and restrain himself from inappropriate behaviour. The position looks more optimistic now than it did at the end of 2005 but only time will tell.”

[17]She concluded that:

“The parents’ relationship is problematic to the point of presenting a potential obstacle to them caring for [E] in the foreseeable future. … I do not consider for a moment that the relationship between them is over despite their recent separation. It may well be that that separation is purely “tactical” to improve things for the court hearing … If, as I consider probable, they do not separate, however well M does in her own recovery, she will always be linked with and in danger from what I suspect may turn out to be F’s greater difficulties in recovering. Even if drug taking does not recur, it is my view that their environment is likely to continue to be in danger of being volatile. Neither is mature. Each has the capacity to be sparked off into agitation and they do fall out, even in the presence of others as [the Guardian] saw. Each has personal issues upon which they urgently need to work and the process of addressing these will take up much of their energy. It is impossible to rely upon them, separately or together, to provide the sort of home circumstances that [E] needs to grow up securely. Their abilities as parents may develop over time but I would not forecast now when, if ever, they would be in a position to manage a transition of [E] into their care (or the care of one of them) and to provide for her reliably for the rest of her childhood. Each year she now spends with her grandparents makes it more difficult (or impossible) for her to move to live with her parents or either of them.”

The GP’s role in E’s life

The judge recorded that:

“the Guardian and [the social worker] are in no doubt whatsoever that the practical care and love that [E] is receiving from her grandparents is outstandingly good. They have the capacity to raise her in a loving, nurturing, child-focused home that will meet her developmental needs. That is the basis upon which I proceed and it is because it is so clear that it can be stated so shortly in this judgment. The Guardian says “[E] is flourishing.”

And I accept that description.”

[19]I have no reason to doubt it either. It is because their care has in fact been and has been accepted to be exemplary that they now find it baffling that there should be what they regard as intrusive involvement of the LA.

[20]Fearing, with justification in the light of the judge’s findings set out above, that there is no real prospect of the parents assuming E’s care within any reasonable time frame, GP began these proceedings by applying for an adoption order. Although the LA had reported to the Wandsworth County Court during the course of the 2004 residence applications, they had had no further involvement with the family until required to report for the purposes of the adoption application. In that report dated 18th November 2005 the social worker concluded:

“Due to the very complex and intricate dynamics of this family it has been difficult to get a sense of how [GP] plan to manage an adoption order and consequently the LA does not support this application.”

Instead they favoured an SGO. The major concern was that GP were “not in a position to positively promote [E’s] life story as would be expected of any other prospective adopters.”

[21]The Guardian shared that view. Her only concern about the capability of GP to meet the child’s needs has “throughout been their apparent reluctance to provide clarity for [E] regarding who her biological parents are.”

[22]It was in those circumstances and, as I sense it, under considerable pressure that GP abandoned their adoption proceedings and settled for the comparatively new status of Special Guardians. The litigation has undoubtedly placed them under considerable stress and has taken its toll on their resilience. They are not far short from breaking point. Their financial position is such that they are not eligible for Legal Aid. By contrast, of course, the parents are. I share the exasperation expressed by Toulson L.J. that in stringent times for the funds of the Legal Services Commission F enjoyed the luxury of being represented by counsel and solicitors yet he could not be bothered enough to attend court. To be fair to the LA, they did recognise the inequality of arms and so they provided some financial help which enabled GP to be represented before Black J. Despite the judge’s expression of gratitude “to the advocates for the focused approach that they took to the issues which avoided the hearing being diverted into unprofitable side avenues”, GP undoubtedly labour under a sense of injustice. In answer to a question from Wilson L.J., GM told us, “It is not putting it strongly enough to say we have been battered by the legal system.”

[23]I have very considerable sympathy for them. Here they are locked in litigation, escalating beyond their resources, emotional as well as financial. Not only have they had to suffer the anguish found by the judge of the drug-fuelled unreasonable and erratic behaviour of the parents but they have also as a result been thrust by these circumstances beyond their control into offering themselves as long term carers for their granddaughter when, as GM said to us with heartfelt emotion, “We’d much prefer just to be ordinary grandparents.” I have no doubt they long to live their life in peace from worry about the parents’ actions and free from interference from social workers. For the LA to threaten to exercise their statutory powers, that is to say, threaten to take E into care, is to add insult to injury and for my part I regard that threat as most regrettable and destructive of the stability for E the LA are charged to promote.

[24]We know all to well that it is not unusual for oppressed litigants in person to feel that injustice has been heaped upon them. So in this case we see scattered throughout the many pages of argument submitted to this Court by GP both before the appeal was heard and, however irregularly, after it had concluded, the thread of an argument that they did not have a fair trial before the judge. They feel particularly aggrieved that the mother’s solicitors and counsel mounted a “crescendo” of attack upon GM’s credibility, “adding hugely to the stress she is under”. The purpose was to give credence to what they see as a “fabricated adult dispute”, namely the cynical exaggeration of difficulties in the relationship between grandmother and mother as such and as mother and daughter. GP are convinced this attack upon them was mounted in order to disrupt and destroy the previous interim order for contact that gave to GM discretion and supervision over M’s contact. GP complain of an attempt by M’s solicitors to introduce evidence against GM which had already been ruled to be inadmissible by the district judge, so compelling Black J to read a calumnious denunciation of GM by her former late husband’s partner. She is convinced that this “heavy pollution” subliminally affected the judge’s mind and led to adverse findings being made against her. I recognise the passion with which these submissions are advanced but there is no support for them in the papers before us. We have not seen the disallowed statements nor have we seen any transcript of the argument on the first day which resulted in their being read by the judge and excluded by her. I have, however, no reason whatever to fear that the judge was “duped” or that the trial was unfairly conducted through oppressive cross-examination by counsel. I have read and re-read the material placed before us by GP but I see nothing to suggest any procedural irregularity giving rise to a real prospect of success on this ground on appeal. Sadly litigation is a searing experience but that does not mean that the process is unfair.

[25]Other criticisms of the way the case developed add little to the point. The local authority’s “proposed package of family support” may well have been put to GP with little chance to reflect upon its detail before they were cross-examined on it but this is not significant in the overall context of the case because much of it had been foreshadowed in LA’s report and the guardian’s report. If there were errors in the guardian’s report they were minor and relatively unimportant. For my part I would refuse permission to appeal on any ground suggesting that the hearing was unfair.

[26]GP themselves acknowledge in the very first sentence of their Grounds of Appeal dated 29th October 2006:

“This appeal is not intended in any way as a criticism of the judge who made the order.”

That is a very proper concession and with that in mind, I turn to those matters in their voluminous grounds, skeleton arguments and other written submissions which relate to the orders under challenge as I outlined in the introduction to this judgment.

The orders under appeal

[27]The material parts of the order provide as follows:

“Upon reading the Package of Support proposed by the Local Authority and annexed to this order And upon reading the proposed written agreement between the parties annexed to this order And upon a Special Guardianship Order and Injunction of even date It is ordered that: - (2) … The child shall be known by the [surname]; an application by the applicants to change the child’s surname is refused. (3) There shall be direct contact between the child and [M] on six occasions per annum subject to the following conditions:- (a) with the agreement of the Local Authority contact shall be supervised by London Borough of Wandsworth’s social services; (b) with agreement of the Local Authority, London Borough of Wandsworth shall use its best endeavours to ensure that the same worker supervises the contact visits in the first year; (c) contact shall be four hours in duration, such time to include travel time for the child; the child shall be collected from the applicants’ home address for contact and returned back following contact by the contact supervisor; (d) only the mother shall attend contact; (e) neither [GF] nor [GM] shall be present during contact; (f) contact shall take place away from the usual home address of the child; (g) during contact [M] shall have full regard to the proposed written agreement annexed to this order and it shall remain within the discretion of the Local Authority to cancel, or suspend or bring to an end any contact visit in the event of a breach of any aspect of the proposed written agreement, particularly paragraphs (xi) and (xii) thereof or if the mother speaks in a manner undermining of the placement. (4) There may be such further or other contact between the child and [M] as agreed between [M] and [GP] only if approved in advance by the allocated social worker in writing, such advance approval being required for a period of 12 months from the date of this order. (5) At the discretion of the Local Authority there shall be indirect contact to [F] by way of cards and/or letters; such contact may include suitable presents if [F] so wishes; such indirect contact shall be made via social services as “letter box” contact, social services having agreed to ensure (for a period of twelve months in the first instance) such indirect contact material is given to the child. In addition the applicants agree to provide the father with an annual letter setting out [E’s] development and progress; the indirect contact shall be facilitated by the Local Authority’s “letter box” service; … (11) The applicant’s application for permission to disclose the papers to a consultant child psychiatrist is refused.”

And upon reading the proposed written agreement between the parties annexed to this order And upon a Special Guardianship Order and Injunction of even date (2) … The child shall be known by the [surname]; an application by the applicants to change the child’s surname is refused. (3) There shall be direct contact between the child and [M] on six occasions per annum subject to the following conditions:- (a) with the agreement of the Local Authority contact shall be supervised by London Borough of Wandsworth’s social services; (b) with agreement of the Local Authority, London Borough of Wandsworth shall use its best endeavours to ensure that the same worker supervises the contact visits in the first year; (c) contact shall be four hours in duration, such time to include travel time for the child; the child shall be collected from the applicants’ home address for contact and returned back following contact by the contact supervisor; (d) only the mother shall attend contact; (e) neither [GF] nor [GM] shall be present during contact; (f) contact shall take place away from the usual home address of the child; (g) during contact [M] shall have full regard to the proposed written agreement annexed to this order and it shall remain within the discretion of the Local Authority to cancel, or suspend or bring to an end any contact visit in the event of a breach of any aspect of the proposed written agreement, particularly paragraphs (xi) and (xii) thereof or if the mother speaks in a manner undermining of the placement.

And upon a Special Guardianship Order and Injunction of even date

[28]The proposed Package of Family Support recorded that E would remain a “child in need”, “having emotional needs concerning her identity and heritage which have yet to be met.” The LA planned to assist E and her family in the following ways: i) allocating E her own social worker; ii) carrying out life story work directly with E; iii) referring M, GM and GF to family therapy at Springfield Hospital; iv) organising contact and supervising contact for M and her daughter v) assisting F in commencing indirect contact to E and acting as letter box for such contact with the intention of ensuring that all letters, cards and presents are given to E directly by the social worker with GP’s assistance; vi) reviewing both M and F’s contact to ascertain what changes may be necessary and in F’s case considering any progress to that contact, such as direct contact in the longer term. The social worker to be specially allocated to E was to work with GP around issues of E’s dual heritage and assess the impact of contact on E. The social worker would carry out the life story work which would involve:

“… helping [E] to understand the context of her family, how she came to live with [GP], preparation of a Life Story book with her family tree etc, help her to understand the contact visits and to assess the impact of contact on her after it has taken place. The Local Authority will also work with [GP] to help them understand the issues around [E’s] identity, (including the importance of her name remaining the same).”

Because of the anticipated long-term nature of the proposed family therapy the Local Authority recorded their view that the NHS would need to fund that work.

[29]The package provided in paragraph 7 that so far as contact to M was concerned, the social worker was to be responsible “for organising the contact supervisor for the first twelve months” and four specific dates were given with two additional dates to be confirmed by the parties.

The argument

[30]The primary submission of GP is the omnibus argument that there is a fatal inconsistency between the granting of a special guardianship order on the one hand and on the other the restrictive effect the orders under attack have upon the free exercise of the overriding parental responsibility conferred on them by the S.G.O. The argument is put in various ways. It is said that their parental responsibility is being treated as not overriding all other parental responsibility as the Act says it should. “The anomaly is that a special guardian, despite being given parental responsibility is not perceived as a “parent”; yet we have all the duties and burdens associated with the parenting role.” What real value, they ask rhetorically, does the name tag have if it does not give the guardians the autonomy to bring up the child in a normal way without “big brother”, the social workers, exercising the real control which, absent a care order, the Local Authority does not have. “Looking at it from a point of view of a child like E, who has had three years sole and complete parenting from [GP], surely it is they who should be supported in order to support her, not the addicts who have caused all this distress in the first place?” Consideration of this argument calls for some examination of the nature of a special guardianship order.

[31]Special guardianship was foreshadowed by a White Paper, Adoption: A New Approach (Cm. 5017). It is a half-way house between a residence order and an adoption order. Its purpose is to provide permanence short of the legal separation involved in adoption. The White Paper explained:

“5.10 The Government will legislate to create this new option, which could be called “special guardianship”

. It will only be used to provide permanence for those children for whom adoption is not appropriate, and where the court decides it is in the best interests of the child or young person. It will:- give the carer clear responsibility for all aspects of caring for the child or young person, and for making the decisions to do with their upbringing. The child or young person will no longer be looked after by the Council; provide a firm foundation on which to build a life-long permanent relationship between the carer and the child or young person; preserve the legal link between the child or young person and their birth family; be accompanied by a proper access to a full range of support services including, where appropriate, financial support.” give the carer clear responsibility for all aspects of caring for the child or young person, and for making the decisions to do with their upbringing. The child or young person will no longer be looked after by the Council; provide a firm foundation on which to build a life-long permanent relationship between the carer and the child or young person; preserve the legal link between the child or young person and their birth family; be accompanied by a proper access to a full range of support services including, where appropriate, financial support.”

[32]The changes were made by the Adoption and Children Act 2002 amending the Children Act 1989 by the insertion of the following, among other, provisions:

“14B(1) Before making a special guardianship order, the court must consider whether, if the order were made- (a) a contact order should also be made with respect to the child, and (b) any section 8 order in force with respect to the child should be varied or discharged. (2) On making a special guardianship order, the court may also- (a) give leave for the child to be known by a new surname … 14C(1) The effect of a special guardianship order is that while the order remains in force- (a) a special guardian appointed by the order has parental responsibility for the child in respect of whom it is made; and (b) subject to any other order in force with respect to the child under this Act, a special guardian is entitled to exercise parental responsibility to the exclusion of any other person with parental responsibility for the child (apart from another special guardian). … (3) While a special guardianship order is in force with respect to a child, no person may – (a) cause the child to be known by a new surname; … 14E … (5) Section 11(7) [which allows the imposition of conditions on making a section 8 order] … applies in relation to special guardianship orders and orders varying them as it applies in relation to section 8 orders. 14F(1) (1) Each local authority must make arrangements for the provision within their area of special guardianship support services, which means - (a) counselling, advice and information; and (b) such other services as are prescribed, in relation to special guardianship. …”

Regulation 3(1) of the Special Guardianship Regulations 2005, S.I.

(i) his parent or a relative of his; …

[33]There is in my mind no doubt that GP are correct in their understanding that the SGO confers parental responsibility upon them to a greater extent than they enjoyed under the residence order. It is apparent to me that the special guardian can trump the exercise of parental responsibility by a parent. The Local Authority have no parental authority and never have had in this case. Often a SGO will replace an existing care order and then by virtue of s. 91(5A) of the Children Act 1989 the SGO discharges the care order. All of this sits comfortably with the philosophy which lies behind the introduction of this new form of order. It is intended to promote and secure stability for the child cemented into this new family relationship. Links with the natural family are not severed as in adoption but the purpose undoubtedly is to give freedom to the special guardians to exercise parental responsibility in the best interests of the child. That, however, does not mean that the special guardians are free from the exercise of judicial oversight.

[34]S. 14B(1) requires the court when making the SGO to consider whether a contact order should also be made. The obvious beneficiaries of that contact order are the natural parents who have been sidelined but not totally displaced by the making of this order. If a contact order is made then it can be hedged about with conditions see s. 11(7) and s 14E(5) of the Act. S. 14B(2) also permits the court to give leave (and by implication, therefore, to refuse to give leave) for the child to be known by a new surname. It follows as night follows day that the court has the jurisdiction to make the orders set out in paragraphs 2, 3, 4 and 5 of the judge’s order and GP’s attack has, therefore, to be one directed at the manner in which the judge exercised the discretion she so clearly had.

Change of name

[35]GP remain very anxious to have E known by their surname, namely S. They explained their motivation to the judge being in part to make things easier with the outside world, for example to avoid having to explain the complicated family relationships when the child is taken for medical treatment. Putting it generally, they wish “to normalise everything”. In this Court they pointed out how tenuously the parents have treated the question of a settled surname. When E was born she was known in the hospital by the surname V. When her birth was registered and the overwhelming probability is that the name was registered by F, he registered her with the surname L, thereby adopting his surname. At a time when M was living with GP she condoned the use of the surname S. M herself has used the GP’s surname (S), her father’s surname (V), her husband’s surname (L), and in addition has from time to time adopted several aliases. GP’s argument is that to give E their surname is to give her a sense of belonging because the implication to the child otherwise is “You do not belong to us”. Moreover, they say, it is a sign of confidence in their shouldering the responsibility of long-term parenting as special guardians as opposed to short-term caring as foster parents.

[36]The judge refused to permit any change of name. Her reasons were these:

“In a case where there is as much anxiety as there is here about the way in which [E’s] identity is dealt with, it would be completely contrary to her interests, in my view, for her now to be known by a different surname. Her welfare is most likely to be secured, it seems to me, by keeping her circumstances as faithful to reality and the truth of her situation as possible. Whilst I accept that some explanation of names will be required, for instance, doctors and schools, I do not consider that that will be an insuperable problem in the context of a special guardianship order. A simple explanation that [E’s] parents are unable to care for her so we, her maternal grandparents, are looking after her with an SGO should be sufficient.”

[37]Thus the crucial element in the judge’s findings is that vexing problem of identity. This, it will be recollected, was at the forefront of the guardian’s concerns and the social workers’ concerns as they reported at first in the adoption proceedings and then in these proceedings.

The judge made several findings about this:

“59. There is no doubt that the question of identity is a serious one which has the potential to be harmful for [E] if it is not resolved and possibly disruptive of her relationship with her grandparents as she grows older. … [E] will have at least two major added issues to cope with as she grows up in that she will be a mixed race child and, rather than living with her parents, she will be living with her white grandparents. Each step must therefore be taken at every stage to ensure that her upbringing puts her and the adults in her life in a position to deal with this in the best possible way. … 61. The guardian said in her March 2006 report that she had “major concerns” in the area of [E’s] identity needs. She considered, quite rightly that [E’s] emotional needs can never be fully met if she is to be cut off completely from any knowledge of her paternal family. … 63. GM’s oral evidence about the whole issue of fathers and mothers was disturbing … 64. The overall thrust of the grandparents’ evidence was that they agreed in principle that [E] needed to know who her mother and father were but they were not proposing to raise the issue of parents with [E] until she raised it with them. The sense I got was that they remained unpersuaded that [E] should be given a normal basic child’s understanding of mother and father but thought that she should have the concepts put over to her in a way which recognised that her parents were not actually acting in the capacity of parents to her, hence the use of terms such as “birth mother” and “birth father”. … GM disagrees forcefully with the normal social services’ practice of starting a life story book with the child’s parents and says, “I hope the [social services] are not going to force me to do it in that way.””

[38]GP vest huge emotional importance in this issue. In written argument submitted shortly before the hearing they state this:

“The fact that name-change has been specifically inserted as a possibility with an SGO shows that it has been put forward as an advantage to the maintenance of stability. [Her use of our surname] signals to the outside world that this is a unit, and that [E] is part of us. It helps everyone, both inside and outside the family unit to know where they all are, particularly [E] herself who wants a family day by day, not in the abstract … it therefore acts as a recognition of the reality of the grandparents’ input and a realistic acknowledgement of their value to [E’s] interests. As such it is a mark of real support to their maintenance of her security, and a helpful definition which helps shore up their stability in the face of the swell of addict chaos.”

I have a great deal of sympathy for much of what they are asserting. They do feel they have made a huge sacrifice in picking up the pieces of the parents’ chaotic lifestyle and in giving E as normal a family life as is possible in the circumstances. They feel fragile and in need of support. As

the judge found in paragraph 65:

“I had a real sense of a household beleaguered by the litigation. I think [GP] feel profoundly insecure in their care of [E] at the moment and in their relationship with M and F. They have been attacked and criticised during these proceedings for many things that have happened over the years when I am quite sure that they have always done what, rightly or wrongly, they thought was the best for everyone concerned in situations which were often very difficult. I think they also feel that their efforts in stepping in and looking after [E] have been misconstrued and denigrated and the love and care that they have given her as grandparents not recognised. It is vital for [E’s] future that this insecurity and uncertainty is brought to an end.”

[39]Sympathetic though I am to their predicament and their hurt, their concerns overlook the value of the lesson we are all taught at our mother’s knee: honesty is the best policy. This family must honestly face up to its fractured constitution. E must learn to live with the fact that she is being brought up by her grandparents not her parents. It should not be difficult to say to E, “Darling, your surname is L, not S, because L is the name you were born with, it is your parents’ surname.” That is a fact she will soon absorb and with which she will soon be comfortable. It avoids the much more difficult questions that will be asked when she wishes to know “why am I S if my parents are L?”.

[40]Although I would allow permission to appeal this issue, I would dismiss the appeal because I am satisfied that the judge’s order was rightly made in the best interests of E. I wish to add, as emphatically as I can, that the rejection of this appeal should NOT be seen as any denigration at all of the stupendous effort GP have made to bring order and normality into their granddaughter’s life. I commend them for that. I urge them, however, not to exaggerate the importance they attach to this issue. In the scale of things in this child’s life, her surname is a fact of little real significance. Far more important is the knowledge E will have that she has been much loved by her grandparents who have brought her up.

[41]I have deliberately refrained from addressing the argument that because the Court is given the reminder to consider a change of name when making a SGO, there is some bias in favour of such an order being made. It could be argued that the degree of permanence inherent in this arrangement has a change of name as a concomitant, just as in adoption. This argument has not been fully addressed in this appeal. Miss Boyd’s answer on F’s behalf is that if adoption is not appropriate and if maintenance of some link with the parents is to be achieved, then the natural corollary is to preserve the parents’ name. This is not the case where that dispute needs to be resolved. Ultimately the welfare of the child concerned is the litmus test and here the welfare of the child so overwhelmingly justifies the judge’s decision that no presumption or starting point one way or the other makes any material difference.

M’s contact

[42]The judge’s order must be seen in the context of her findings about the relationship between GM and M. I have adverted to this already in paragraph 14 of this judgment. It is not at all surprising that the judge should have found a “degree of raw agitation and excitability” attending and no doubt exacerbated by this case, nor should we doubt “the strongly competing emotions of love, dependency and conflict that exist in M and GM”. In another paragraph the judge found:

“At times, what [GM] writes and what [M] has written in the midst of complaints, anxieties, and recriminations show that each of them still has a need and love for the other and wishes, deep down, to be able to have a more straightforward and positive relationship. I’m sure that both of them mourn, more or less consciously, the loss of so many years that have been marred by the problems that have beset them.”

[43]Against that background the judge was of the view that what was happening during contact sessions was important because it revealed something of the “dynamics between G and GM and about their personalities”. She observed:

“There have been pleasant and fun contacts. … I do not intend to attempt to attribute blame for the times when contact has not gone well. That will be far from simple anyway because I am acutely aware that the trigger points may derive from the history and not from the immediate events of each individual contact session. What is clear is having [M] and [GM] together in a contact session is setting up a situation in which emotional explosions of a type that would be harmful for [E] can and do occur, even when professionals are present. [M] asserts that her mother does the shouting, not her, but that has not been observed by professionals; I note that the guardian comments more than once on [GM] acting in a placatory way. It is clear that [M] can manage to have extremely good contact with [E]. She can also manage things very badly. … I think [GM] is probably right when she says that [M] has the capacity to explode in contexts which do not involve her as well … In my determination of the contact issue, I will therefore have to look at the implications of [M’s] rather more widespread volatility before determining whether contact without the grandparents is likely to be an answer here.”

[44]As I have already indicated, GP’s case is that for tactical reasons M’s advisers constructed this “fabricated adult issue” in order to denigrate and demean her. GM is convinced, therefore, that the judge has misunderstood her and misunderstood the dynamics of this complex mother/daughter relationship. The more I immerse myself in this case and in GM’s copious and emotive submissions addressed to us orally and in writing, the more it seems to me that GM is reading more into the judgment than is there. The general tenor of the judgment, perhaps not always expressly stated, is not unsympathetic. The judge’s findings about GM are mild by comparison with her criticisms of M. GM bridles, for example, when, dealing with M’s complaint against her that GM is controlling, the judge found:

“I do not dismiss this consideration out of hand because it seems to me that GM can be controlling or try to be.”

In this fractured family, somebody had to be in control and it is not at all surprising to me that this grandmother, so weighed down with burdens thrust upon her and so on guard over so many years against the parents’ erratic behaviour, has had to assume a protective role. The danger for GM is, and she must guard against it, that she can too easily become over-protective.

[45]In the forefront of the judge’s mind when she turned to what contact M should have was her finding that it was M’s temperament that was explosive. That fact cannot be and is not denied by GM. That explains the judge’s conclusion, namely:

“I am entirely clear that a continuance or a resumption of the contact situation that has developed during these proceedings would be profoundly damaging for [E]. If there were to be any question of that, priority would have to be given to maintaining (at most) a strictly regulated regime of limited contact away from the family home. There may even be a need for contact to cease for a period. … I accept the advice of the guardian and social services that the correct approach for the immediate future to M’s contact is to introduce complete certainty about it, reducing the frequency, taking it outside the Putney home and removing the flashpoint between the adults.” (Emphasis added.)

[46]On the face of this judgment, it would have been very difficult for GP to show that they had a real prospect of successfully overturning this order for limited supervised contact for M. The judge’s findings of fact are nigh impregnable: she had the unique opportunity which this Court lacks of seeing the witnesses and judging their demeanour. Her criticism of GM, muted as it is, seems to me to be unassailable. So is her assessment of M. The decision on contact required her to exercise her discretion in what she judged to be the best interests of E. Her conclusion can only be upset in this Court if is plainly wrong, that is to say, outside the generous ambit within which there is reasonable room for disagreement. It seems to me to fall well within the area where the judge’s choice must be respected by this Court.

[47]However, by the time the case got to this Court things had changed,. All the parties seem (wrongly of course) to have assumed that the mere filing of notice of appeal operated as a stay on the order and so no steps seem to have been taken to abide by it or to enforce it. Paragraph 4 of the order permitting contact between E and M as agreed between M and GP only if approved in advance by the allocated social worker in writing was ignored and M and GM operated as they always had. GM put in fresh evidence which no-one disputed that M had called at GP’s house on nine occasions since the judgment and on those occasions enjoyed contact. What is important is that all of those visits passed uneventfully and without incident.

[48]I confess to having had grave doubts about the feasibility of operation of paragraph 4. The nature of the relationship between M and GM is such that both wanted and welcomed visits, especially now that M is no longer arriving under the influence of drugs. To control this by a social worker’s approval in writing in advance seemed to me to be fraught with difficulty. As it transpired all parties agreed and all were content for this Court to discharge this proviso, namely the words “only if approved in advance …, 12 months from the date of this order” of the order and for my part I also agree and would grant permission to appeal and allow the appeal to that extent.

[49]How then does that affect the supervised contact directed by the judge? We gave M time to consider her position. Now that the heat of battle had subsided, would she prefer to make her own arrangements with her mother or did still she prefer supervised contact knowing that, if there was another unhappy scene and relations with her mother broke down, GM could refuse any more than the six visits prescribed by the order? Mr Tughan, counsel for the mother, was given clear instructions: mother would take her chance; she wanted “space” to see E outside GM’s orbit even if it meant that was the only contact she would have.

[50]Thus the question for us becomes this: does this fresh evidence so undermine the judge’s findings that we should allow the appeal and either discharge the order for supervised contact or remit the matter back to the judge for re-hearing?

[51]GM’s case rests essentially upon three foundations: 1. her complaint about the exaggeration of the difficulties encountered with M (the unnecessary adult dispute point); 2. the fundamental argument that, they having assumed and been awarded residence of E with contact at their discretion, it is anomalous and unfair that whilst upgrading their parental responsibility with the superior S.G.O. nevertheless at the same time diminish their autonomy of decision-making by imposing the L.A.’s control (the inconsistency argument); and 3. the factual argument that interposing a social worker with little prospect truly to get to know E, will confuse her and destabilise the placement because it highlights the sense of division in the family and removes E from the core security of a family unit in which she has grown up and in which she will for the foreseeable long-term future live her life ( the destabilising argument).

[52]For reasons which I hope are already clear I cannot accept the first two arguments. I have sympathy with the third. Supervised contact is always artificial contact. How much better it would be if M could demonstrate that she is responsible, build up GM’s trust and win her consent to relax GM’s supervisory reign and to persuade her it is safe for her to take E out on her own. How much better if the legal costs of this case had been expended from the very beginning on family therapy only now belatedly and, it seems, uncertainly put in place. In a therapeutic setting all the necessary work to reconcile M and GM and, as vitally, all the necessary life story work could have been done and no-one would have been as bruised as these parties are by this litigation. It is not the advantage of hindsight which informs my lament. If proper consideration had been given to section 14F and regulation 3 set in paragraph 31 above, some form of mediation and therapy would have been offered as the first response to this delicate problem, not as the last resort.

[53]Forced to face matters as they are, I must have regard to the fact that E is already at nursery school, is used to being left alone, is having to get used to strange faces and so will cope well enough with a social worker entering her life for the purpose of arranging six contact visits. The judge was entitled to find E would not be sufficiently upset and the advantages of supervised contact outweighed the disadvantages.

[54]It became increasingly apparent during the course of the hearing before us that there was considerable confusion as to how long the judge envisaged that M’s contact should be supervised. On the face of the order the L.A.’s involvement continues for year to year until the order is varied but the implication of paragraph 4 of the order, and in particular of the terms of paragraph 7 of the written Package of Family Support, is that at the end of 12 months of its operation the old regime of contact at GM’s discretion should revert. Although the judgment is not entirely clear, it seemed to be agreed after discussion that the judge intended supervision to last for one year only and that the order should be clarified to make that clear.

[55]Accordingly, I am satisfied GP have demonstrated an arguable case. I would give permission to appeal but allow the appeal only to the extent that, as set out in paragraph 48 above. The proviso to paragraph 4 of the order is discharged and that it is made clear that supervision of M’s contact under paragraph 3 is to continue for one year only. GP have not persuaded me that the judge was plainly wrong to order this supervised contact and I would not allow their appeal against that part of the order.

F’s contact

[56]In essence GP’s case is that F has not demonstrated sufficient evidence of significant improvement in his powers of engagement with E and his responsibility to prove steadfast in his commitment to her. They consider that the involvement of the social workers is destabilising and “creates a sense of ‘divide’ which is not conducive to E’s sense of completeness.” They believe that F’s ability to give presents will be manipulatively exploited. Above all, they fear that indirect contact is a prelude to direct contact and they cannot cope with that.

[57]Their complaints are not wholly without justification.

The judge did find:

“It is not possible to say at present whether F will be able to form and sustain a relationship with [E]. He undoubtedly has feelings about her as his daughter even though he has not seen her since she was a very small baby. He also has the capacity to show love and care to his other children. He is, however, subject to distractions from other issues in his life as his present position in relation to [another daughter] shows. I think there will probably come a time, if he stays off drugs and works on his behaviour, when F is able to see [E] face to face. It will be greatly to her benefit if that position can be reached. He is her father and she will want to know him and to find out for herself what he is really like and how he loves her. He is also fundamental to her because he has given her the black part of her identity and she will want and need to enjoy that to the full as she grows up. … I hope very much that F can now prove to be reliable in consistently sending [E] cards, letters and, if he wants, presents but only time will tell and the progress of his recovery will no doubt have a huge impact on what happens.”

[58]Thus the judge is accepting that there is a degree of uncertainty about F’s consistently maintaining the desire for contact he professes. It is, however, also clear that the judge was particularly concerned about the level of his commitment and the degree of his abstinence from drugs as matters having impact upon ordering direct contact at this stage. She was right not to go that far and, much as I understand and sympathise with GP’s concerns about this father, any failure by him to send cards regularly will not have the same serious impact as would his failure to attend face to face contact. In my judgment the judge was correct to order some indirect “letter box” contact. Every child is entitled to know its parents and to have contact with them unless there are cogent reasons to refuse it. There are good reasons to refuse direct contact here but that is not a justification for preventing very limited indirect contact.

[59]That said, there are, nonetheless, unsatisfactory aspects of the order for F’s indirect contact. No indication is given as to the number of cards or letters that may be sent or as to the time when they should be sent. Cards are appropriate in January when E has her birthday and at Christmas. That leaves a long gap for the rest of the year, too long for memory of the father to be sustained by a young child. The proper order would be to allow two more cards or letters to be sent and it would seem to me to be appropriate that one occasion might be about the time of F’s birthday on 16th April and on M’s birthday on 20th September. That gives a sufficient spread of time and a suitable anniversary for the communications to be meaningfully explained to a young child.

[60]There is one other unsatisfactory feature of the order. The contact “may include suitable presents if [F] so wishes”. GP’s concern that this permission might be subject to inappropriate manipulation has some force. Presents should be limited to Christmas and E’s birthday. Moreover there has to be some control over those presents and the right way to achieve that is by directing that presents may be included not only if F so wishes but also if the Local Authority in consultation with GP consider the presents to be suitable.

[61]Accordingly I would grant permission to appeal and vary paragraph 5 of the order to the extent I have indicated.

Disclosure of the papers to a consultant child psychiatrist

[62]This application to the judge was made late in the day. No sufficient reason for it appears to have been given. It is not at all clear what purpose would be served by a blanket order of that kind. Consequently the judge was correct to refuse it. That is not to say that permission should be refused if a fresh application were supported by good and proper reason for the disclosure. If good cause is shown I do hope the order can be made by consent.

In the result

[63]To the limited extent I have indicated I would grant permission and allow the appeal.

[64]I agree with the judgment of Ward L.J.

[65]At the hearing before us the grandmother proved to be a formidable advocate; and I found that she drew me very strongly to her point of view. She and the step-grandfather have been required not only to suffer the distress generated by the mother’s lifestyle, including her dysfunctional association with the father, but also suddenly, late in middle age, to save E from adoption outside the family by offering her a permanent home with them. The level of their commitment to E is profound; the quality of their care of her is in almost every respect magnificent. Their only significant failing is to conceive, tenaciously but mistakenly, that the strength of their family unit with E would be undermined by an honest yet gently age-appropriate presentation to her of her identity and thus that of her parents and indeed of themselves as being her grandparents. Their misconception infects their attitude to contact, however closely circumscribed it needs to be in the light of the unreliability of the parents’ behaviour.

[66]For the reasons given by Ward L.J. I have never doubted that the appeal of the grandparents against the judge’s refusal to permit E to be known by their surname should be dismissed; nor, subject to the necessary elaboration of it which he has proposed, that their appeal against the order for indirect contact in favour of the father should be dismissed.

[67]I have however felt some, if transient, hesitation about the proper approach to the only other substantial part of the grandparents’ appeal, namely their objection to the order for supervised contact, outside the home and in their absence, between E and the mother. For example I have asked myself whether the judge sufficiently factored into her reasoning either the profundity of the grandparents’ opposition to such contact; or their sense of outrage in the event that their conviction as to where E’s interests lie were to be overruled; or their apparent state of emotional exhaustion; or the importance for E that the pressures upon them should not become insupportable. Would I (so I have wondered) have made an order, in the teeth of opposition of that character, that, in accordance with the detailed provisions of the “Package of Family Support” annexed to the order, a child then less than four years old should, on 5 November 2006, i.e. only two months after the date of the order, be collected by a “contact supervisor”, whom the child will be likely to have met only twice, and taken away for four hours to meet the mother for the first of the six occasions of contact?

[68]But, almost as quickly as they have crept into my mind, I have had to remind myself that such questions are not aptly posed to himself by an appellate judge. The essence of our system for such determinations of issues as depend upon the exercise of a discretion is that it is for the trial judge to conduct the exercise by evaluation of the rival arguments following full exposure to the evidence by sight and sound. The role of the appellate court is limited to an enquiry into whether the judge’s reasoning betrays error in the manner of her or his conduct of the exercise or whether the determination must be the product of such error in that it is plainly wrong.

[69]There is no wiser judge of the Family Division in this area than Black J. Her order for contact was carefully measured. Its proper characterisation is that it was fairly firm – and I use the word “fairly” in both senses. The rationale was that it was important for E to develop her relationship with the mother; that, in that it is likely that a small child will turn instinctively back towards her primary carer, it is usually easier to achieve her development of another relationship otherwise than by an arrangement for contact in the carer’s presence; that in this case the often highly charged relationship between the grandmother and mother even more strongly militated against such an arrangement; that, because of the unreliability of the mother’s behaviour, her contact with E needed at present to take place in the presence of another responsible adult; and that, the sooner the new arrangements began, the better for E. At the hearing before us we asked the grandfather whether he would be prepared to be present, without the grandmother, during the mother’s contact; and he made clear that he was not prepared to do so. No doubt Black J. received the same message. Thus, in the apparent absence of any family member or friend able and willing to provide the responsible presence, the judge accepted the local authority’s offer of professional supervision at any rate for the first year.

[70]The judge’s order for contact with the mother, reached with all the advantages over us which flow from her conduct of the long hearing, may very well have been the optimum solution in E’s interests. At the very least, however, it was open to her to favour it. We cannot interfere with the order; and it must now at last be implemented. The grandparents must tell themselves that now at two levels the legal system has given close, sympathetic consideration to the issue; they must swallow hard and, for the sake of E, do all they can, as must the mother, to make it work.

[71]I agree with both judgments.