H (A Child), Re [2008] EWCA Civ 1245

Case No B4/2008/1699[2008] EWCA Civ 1245
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
PRINCIPAL REGISTRY, FAMILY DIVISION
(HIS HONOUR JUDGE JOHN MITCHELL)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 25 th September 2008
Before
LORD JUSTICE WARDLORD JUSTICE LLOYD
IN THE MATTER OF H (a child)
(DAR Transcript of
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Miss E Woodcraft (instructed by Messrs Edward Oliver & Berris) appeared on behalf of the Appellant.
Ms A Maude-Roxby (instructed by LB Redbridge) appeared on behalf of the Respondent.
Ms J Brown appeared on behalf of the Guardian.
Mr I Weir appeared on behalf of the Child’s Guardian.
Judgment
[1]This is an application brought by the mother of a young girl. I will call her by her initials for her identity should not be disclosed, so I will call her “T”. T was born on 23 February 1998, which means she is some ten-and-a-half years old at the moment. Her mother seeks permission to appeal against the care order made by HHJ John Mitchell on 11 July 2008. On that occasion he dismissed applications by the maternal grandmother for a residence order and he dismissed applications by the father for contact orders. Although the order does not recite it, he in fact also dismissed an application which may have been informally made by the mother for contact, leaving contact to be arranged at the discretion of the local authority.[2]It is a worrying case. The parents are a married couple. They are in their mid-thirties and they married in 1997. Mother sadly has a tragic history. She was attacked and stabbed in 1988, resulting in severe, almost critical, liver damage, and she has had to undergo a number of liver transplant operations. In addition to her misfortune, she has suffered bowel cancer and that leaves her having to use a colostomy bag for the rest of her life. She is also arthritic; she has had to have a knee and a hip replaced, and one can see that she is a lady who is in some considerable distress; indeed, her life expectancy has been significantly shortened. That means that she is in need of care, and that care is provided with help from another local authority, not this one concerned with the care order.[3]It is not at all as clear to me from the papers just how detailed an investigation has been held in the difficult course of the case through the courts into the degree of matrimonial violence between husband and wife. The parties had separated in February 2005, following a serious allegation, at least, of an assault by the husband on the wife at the end of December, as a result of which he was charged with that assault and with criminal damage and acquitted. Reading HHJ Mitchell’s judgment, one gains the impression that he was perhaps a little fortunate to have been so leniently dealt with by the criminal courts.[4]Following the separation, the father made an application for contact and that began HHJ Hornby’s involvement in the case. He made an order for contact, but contact did not take place. He imposed a penal notice and it still had no effect. Mother was utterly resistant to it. The child was being looked after by the maternal grandmother when mother left home. The maternal grandmother has played quite a significant part in the child’s life by dint entirely of her having to look after her own daughter, the applicant, given her disabilities. But in December 2005 mother resumed T’s care, and save for one occasion in October 2006 neither the father nor the maternal grandmother have had any contact with T at all.[5]There were findings of fact enquiries conducted by HHJ Hornby. I think the flavour of it is captured in paragraph 59 of his judgment in February when he said:
“It is clear that the mother has a violent temper…and I have to say regrettably that that is so. It is clear that the mother has been involved in violent arguments and she is a perpetrator as well as being a victim. Certainly a victim of FM.”
That is a reference to the fourth significant adult who plays a part in T’s life. He is said to be a cousin of the mother’s, though that does not appear to be universally accepted. He has certainly insinuated himself significantly into their lives and has, from time to time, acted as her carer and has been receiving remuneration from the authorities in that role. He plays a central part in the life of the mother to an extent, one would think, and I certainly think, and I say as emphatically as I can that the mother should most carefully think about the extent to which she allows him to play a part in her life when that may be detrimental to her daughter. The judges have clearly formed a wholly poor impression of him. Moreover, as HHJ Mitchell recites at paragraph 33 of his judgment, he entered this country with limited permission as a visitor; he is an overstayer; he has sought to extend his stay but the immigration authorities have refused that permission. He was detained by the police in connection with criminal charges about which the judge -- and we consequently -- know nothing, and he was served by the immigration authorities with notice that he was liable to be removed as an over stayer. That removal has apparently not taken place. But inevitably it will take place. Mother would do herself a great service if she were to put a great distance between herself and this gentleman, Mr FM.[6]To return to the narrative. In February 2007 the fact-finding inquiries took place; and the next significant event is July 2007 when an interim care order was made and, as a result, these proceedings began.[7]T had been placed with a temporary foster mother whilst plans were being considered for her long-term future. In February 2008 the plan put forward was that T should return home to her mother but with certain safeguards, particularly that T should have no contact with FM. Mother took the firm stance that she was not prepared to agree to that condition. I hope she repents of that decision. It resulted in the local authority taking the view that long-term care was the only option for the child in that the local authority was supported by the guardian, although a separate solicitor having been instructed that move was opposed. So the question then is: how did HHJ Mitchell deal with that application which came before him through the lack of availability of HHJ Hornby?[8]I need not set out more of the history. It is enough to recite, perhaps, HHJ Hornby’s view of the mother. He said:
“It is a mixture of good things and bad things. She is a warm mother. She is a loving mother. She has a sunny personality and I accept T’s description of her. She is extremely bright. She is very articulate and she is imaginative. I am sure she has done a great deal to advance her daughter’s success at school, because her daughter is clearly doing well at school, having had a difficult time.”
[9]HHJ Mitchell had necessarily to decide whether this child had suffered significant harm; and he made those findings in paragraph 27, having taken into account particularly the evidence of Dr Padamsee, who was a most impressive witness, as he found. And so he had no hesitation in finding that significant harm:
“…because, firstly, her mother, without any good reason, has denied her the opportunity of contact with, and a loving relationship with, her father, grandmother and grandfather. Moreover, she has poisoned her mind against them. Secondly, she suffered significant emotional harm because she has been exposed to violent behaviour and threats by the mother and [FM]. Thirdly, she has been inappropriately exposed to her mother’s emotional comments about her own illness. I am not satisfied she is at risk of physical harm from either the mother or [FM], although, as I say, being exposed to a violent relationship creates a risk of significant emotional harm to the child.”
He went on to give illustrations of the appalling bad language used by the mother and FM in the child’s presence and their clearly expressed hostility to grandmother and father. His conclusion therefore, in 32, was that mother has poisoned T’s mind against the grandmother and her father. “I have no doubt,” the judge added, “that that lies at the root of T’s reluctance to see either of them.”[10]Having found therefore that the threshold was crossed, the question arose for the judge: what order do I make? And in that regard he directed himself impeccably that T’s welfare was his paramount consideration, and the judge then went through the checklist of factors, looking firstly at T’s wishes. As to that, he said in 37:
“I am quite satisfied, from everything that I have read…that T loves her mother and that she wants to return to live with her mother, and that at present she does not want direct contact with her father and grandmother. Her wishes to return home have remained constant.”
And he referred to evidence given by Dr Padamsee. He noted the social worker’s recording that:
“Her teacher had understood from [T] that she was always thinking about her mother and wanting to be returned to her. She has constantly maintained that she would like more than anything else to be allowed to return home to reside in her mother’s care.”
As recently as 14 June, Dr Padamsee had reported T’s telling him that she would like to return with her mother; and then adding, significantly:
“[T’s] foster mother informed me that [T] has resigned to the probability she will be placed in long-term foster care.”
Hence, Dr Padamsee concluded:
“While I feel that [T] will be emotionally affected, as she is currently, by being separated from her mother, I feel that [T] has resigned herself to the probability of being in long-term foster care as she has realised she has been able to function as a full-time carer for her mother and her mother is likely to require the support of [FM].”
The task for the judge therefore was to weigh up and assess those wishes and feelings, having regard to the child’s age and understanding. He concluded in paragraph 40:
“[T], at the age of 10½ is entitled to form her wishes and is entitled to have those wishes respected and given weight. However, at her age they cannot be determinative. I have to decide what I think is best for her, having regard to all the factors in this case, including the possible affect on her of making a decision contrary to those wishes.”
[11]The judge did not, as it seems to me, consider those wishes, not only in the light of her age but -- as is required by Section 1(3) of the Children Act 1989 -- her age and her understanding. Her understanding was apparently astute enough, well-developed enough and mature enough for her to have been permitted to be separately represented, and there is nothing in any reports which tend to suggest that she did not have an understanding of what was happening in her life. It is a little weakness in the judge’s analysis.[12]Then, and quite properly, the judge turned to a chapter heading called “T’s Needs”, and he recorded from an early stage the social worker’s saying that:
“[T] has a very well-adjusted 9 year old [as she was then]. It is evident that the relationship between her and her mother is very significant.”
Dr Padamsee’s report of August 2007 led him to conclude that:
“…she received fairly good nurturing during the early years of her childhood while she was being cared for by her mother, maternal grandmother and with the support of her father.”
In his most recent report, Dr Padamsee had noted that T has:
“…a strong and significant attachment to her mother.”

The judge’s analysis of her needs comes in paragraph 40:

“I am satisfied [T] needs a home where her carer will meet her physical and emotional needs. Meeting her emotional needs including encouraging a good and warm, secure relationship with her maternal grandparents and her father if she does not live with them. That is all the more important for her because she has not been living with her mother for nearly a year, and virtually there has been no contact with her father and grandmother since February 2005.”
That, I note, was sixteen months previously. “In addition,” said the judge:
“it is important that the carer who, if she is not the mother, encourages a good, warm and secure relationship with her mother.”
[13]My concern is that in that analysis of needs, there is no reference by the judge to the need the child has to maintain the very significant relationship with her mother and maintain the strong and significant attachment to the mother. The needs analysis is concentrated entirely on the lack of emotional support being supplied by the mother.[14]It would have been appropriate for the judge to have adverted to the need to maintain the relationship with mother, indeed to implement the very plan that had been proposed but then which foundered in February, those few months earlier. The judge does, however, return to these matters, as I shall indicate.[15]His next chapter heading was “Mother’s ability to meet those needs” and his conclusion in that regard comes in paragraph 47:
“I have no concern about [mother’s] ability to meet [T’s] needs other than her emotional needs.”
He made adverse findings about the mother’s reliability in the way she gave her evidence and he was unable to rely on her, given that shortcoming. He was forced to proceed, as he found in paragraph 54, that the relationship with FM was a continuing one and that if T returned home she would have regular contact with FM; and that, he concluded in paragraph 55, would have an adverse effect on her.[16]As for contact with mother and grandmother, all probing by counsel for the solicitor who represented T to explore the possibilities of mediation and effecting some rapprochement between mother and grandmother met with no response at all. The mother’s sad view, her very sad view, was: “I doubt I will ever speak to my mother again”.[17]The judge looked at rehabilitation. He was satisfied mother was unwilling to cooperate in the past and was therefore satisfied she would not cooperate with the social workers in the future. In paragraph 61 he said of the mother:
“There are good things about her past care for [T]. [T] loves her. But having made every allowance for the effect on her own illness, it was very sad that when I was listening to her give evidence there was no trace of any insight whatsoever into [T’s] feelings or why people had been worried for a number of years.”
[18]Mother might do well to have paragraph 61 copied and ponder about that adverse finding. I can well understand how the judge made it. He then summarised his conclusions and it is not insignificant that he called them conclusions. They were:
“I am satisfied, in summary, that if [T] goes home it will not be possible for that to occur by way of a gradual reintroduction; that [FM] will remain in close relationship with her mother; there will be no co-operation with Social Services, and no contact with [T’s] father and the maternal grandparents, who would be denigrated by the mother and [FM]. I am satisfied that [mother] is not capable of meeting [T’s] emotional needs.”
[19]Again I point to the fact that, in arriving at those conclusions, the judge had not yet addressed the other side of the coin and not yet taken into account any harm that she may suffer if placed in long term care. He did come to that, but at paragraph 69, when he addressed the disadvantages about T being in care, the first which has come to pass, that there was no guarantee she would be able to remain with the social worker in whose home she had been placed until then. We are told that a new placement had to be arranged and that T moved last week. Fortunately she is able to continue at her current primary school, though this will be her last year at that school before she moves to secondary education.[20]The judge acknowledged the disadvantages to any child of being in care, those implicit in the facts and circumstances of a foster placement, and then he went on to say:
“But the greatest disadvantage, in my judgment, is that there will be a loss of [T’s] present relationship with her mother. That relationship will be changed and will greatly diminish. In addition, Miss Strange [the social worker] recognises that it is well-known that teenage foster children often return home eventually, either because it is planned or by taking the decision themselves.”
[21]There is a correct acknowledgment of the danger of care proceedings, especially in a case like this. Of the advantages of being in care, his next chapter heading, he found that there were advantages which he identified as being “the possibility of developing the relationship between T, her father and grandmother”, and he pointed to the fact that some presents had been sent which, although T initially did not wish to accept from her father, she had eventually opened it and enjoyed it but not, as I understand, thanked him for it. He recited the social worker’s comments at the time when they were proposing to place T with her mother, where Miss Strange said this:
“Moreover, [T] has now turned 10 years of age and is moving forwards with her independence and is more able to assert her own needs where she wasn’t able to before. Ultimately it is likely that [T’s] emotional needs will not be met within a long-term foster placement and would be likely to suffer further emotional damage in such a setting. Indeed, [T] herself has stated she would run away back to her mother.”
[22]I interpose to record that this application for permission to appeal was originally brought by the mother acting in person, and in the statements that accompanied it she spoke of the child’s continuing deep distress in her foster placement; spoke of a skipping rope having to be removed from her lest she commit suicide as she had threatened if not attempted to do in the past; then, and more recently, there was a description of an incident taking place within the last week or two when, according to mother, the child arrived wet and bedraggled on her doorstep in a state of very, very serious distress and, not surprisingly, refused to go home. Mother -- and it should be noted that it was mother -- telephoned the police; the police arrived. Whether they had been contacted by the foster mother or the school I know not, but mother says she phoned the police. When they arrived the girl was barricaded in her bedroom, according to mother’s account, and this is not seriously challenged; but disturbingly, in the girl’s cupboard, lo and behold, was FM. He has been arrested on a charge or is on bail pending a possible charge of abduction. Mother, who resisted the police by holding on to her kicking and screaming child, has to report again on bail possibly facing a charge of obstructing the police.[23]That incident concerned me. As a result I asked for the guardian to make enquiries and I am extremely grateful to him for having done so. He saw T last night and it was a meeting in which she expressed the view that she had not been unhappy with her previous foster mother, she seemed happy enough where she was but the incident to which I have referred was not explored in any great detail. It was mentioned by the guardian but since T herself did not respond he did not take it any further. As he acknowledges, T does not welcome his intrusion, as she would see it, into her life. She seems bored (that was the word he used) with his attendance. It seems a harsh judgment on him when he was there at my behest and is obviously well meaning, but it does demonstrate to me that this child is, as has already been noted, resigned to her fate and is simply putting up with the best of a bad world.[24]I interpose that recitation of events because it had seemed to me that it posed a picture of sufficient concern for us to demand that further inquiries be made. I am for my part satisfied with Mr Weir's intervention and prefer to proceed not on the basis of any fresh evidence being introduced or necessary to be introduced, and to deal with this on the basis of the judge’s judgment and so to that I return.

The judge analysed the advantage of being in care in this way in paragraph 73:

“…if [T] remains in foster care there is the real possibility of the developing relationship between her grandmother and father, and some relationship with her mother through contact…”
He again bore T’s wishes in mind. And so the conclusion of the judgment is in paragraph 74, which I read in full:
“I am satisfied it is not in [T’s] interests for a decision to be delayed. She has been waiting for a year. Dr Padamsee and Mr Weir [that’s the guardian] support the applicants, as do [father] and [grandmother]. I agree with the Local Authority. [T] has suffered and will be more than likely to suffer serious emotional harm if she returns to her mother which would outweigh, in the long-term, the harm she would suffer by having her relationship with her mother diminished.”
And so he made this care order.[25]I must acknowledge HHJ Mitchell’s considerable experience in this field and pay tribute to a careful judgment of the kind I would expect from him. I must remind myself as we have been reminded of the limits on the Court of Appeal’s interfering with an exercise of discretion, and our having to acknowledge the generous ambit which there is where there may be reasonable disagreement about the outcome of a particular case. This appeal is very finely balanced but, notwithstanding reminders of G v G (Minors: Custody Appeal) [1985] 1 WLR 647 and, more deeply seared into my soul, Piglowska v Piglowski [1999] 1 WLR 1360, I have come to the conclusion that the judge did err in this case. I have reached that conclusion because, as I have endeavoured to indicate as I recited the judgment, he paid some lip-service to the child’s needs but did not in my judgment sufficiently take on board her understanding of her predicament and the depth of her feeling. Of course he is right to say that a ten-and-a-half year old child’s wishes are not determinative of her future, but a ten-and-a-half year old who has so consistently throughout the many months of this inquiry maintained a wish to be with her mother, demonstrated again to some extent by her return there within the last few days, this is a child in some distress.[26]It follows, therefore, that her wish to be with her mother and the perpetuating of the strong and significant attachment to her mother is a weighty factor to bear in the scales. When one poses the question in this way, which is how the judge eventually analysed it -- is she going to suffer greater emotional harm by not seeing her grandmother and her father than by putting her in care and by not fostering the good relationship with her mother but by diminishing it as contact is reduced from weekly to monthly and probably every six weeks? -- it seems to me that the judge has erred in failing to perpetuate the fundamental importance of a relationship with and a life with a parent if that is at all possible. Given the development of a life with mother against the denial of contact with grandmother, it seems to me that the mother’s position prevails. I am fortified in that conclusion by the -- I do not mean this unkindly to the judge -- the misguided optimism that placing this little girl in care is going to foster contact with the grandmother. She has been in care for some 15 months or more. In that time she has shown no sign of meeting her grandmother, still less her father; and there is, it seems to me, scant evidential basis for the judge’s optimism. It is that lack of evidence which undermines the key pin of his thinking, namely putting her in care will promote contact. A lack of evidential support for that is in my judgment the flaw in his judgment. He has come to a conclusion without the evidential basis to support it, and for that reason I am, though not without hesitation, able to say that in my judgment the judge was wrong and that this care order should not have been made.[27]What then is to happen? I fully appreciate the guardian’s view that this child is totally fed up with continuing litigation. It would be wholly contrary to her interests to send the matter back for reconsideration; this court has to take that decision. Should there be a period of rehabilitation? I am afraid my view about that is quite clear: no. We are not moving this child to terra incognita, she is going home. Local authorities have no compunction in moving children from a home to a foster home without any attempt at preparing the way, and in my judgment T must go home.[28]And therefore I would propose allowing the appeal and substituting a residence order.[29]But that is not the end of the matter. We have a duty to consider what orders should be made and among the raft of orders that can be made is a supervision order. And in my judgment supervision is required in this case because here we have an intransigent and at times stupid mother who, as the judge has found, has imperiled her child’s happiness by her own desire to have an involvement with a man who, sooner or later, and preferably sooner, should be deported from this country back to Mauritius. And the sooner she gives him up, the better it will be for her and for T, whom she loves. He is not a good influence. He has been found to be a thoroughly bad influence and his continuing involvement in the life of this little girl is not helpful, and therefore the social services department will be supervising that aspect. If it continues to cause harm it may be reason for coming back to this court. I address those remarks quite firmly and squarely to the mother.[30]There is another aspect where supervision may well be of assistance. This child was brought up by her mother and her grandmother. There is no reason on the papers to think that grandmother did the little girl any harm, and probably did her a great deal of good during the many years when mother, through her misfortune, has been unable to care for her herself. Mother left T in her grandmother’s care, and it seems to me that this hostility has got to come to an end. I venture to think that nothing would make T happier than the news that she is going home, but the next thing that would make her happy would be that there was an end to the hostility between her mother and her grandmother; and the person who is best able to take that step is the mother, and that is a matter which the social services will wish to keep their eye on. If help is needed in that regard to overcome deep seated hostility, I hope that help will be offered. But the way forward for the best happiness of this child is that her mother:(a) gives up FM and says thank you very much for all you have done but goodbye; and(b) puts out an olive branch and a message of love to her own mother.[31]So there shall be a supervision order to the local authority which will last for twelve months. I would allow the appeal on that basis.

Lord Justice Lloyd:

[32]I agree.

Order

Application allowed