G (A Child)

This is an appeal by grandparents Mr and Mrs G supported by their daughter D against the order of His Honour Judge Altman made on 21^st February 2005 in the Milton Keynes County Court whereby he placed their granddaughter H in the care of the local authority whose care plan is that she should be placed for adoption. He also dismissed their application for a residence and contact order in respect of H.

H was born on 28th February 2003 so she is just 2 years old. Her mother, D, is nearly 22 years of age. For a short while D lived with but never married H’s father and they separated before H was born. The father is a party to the proceedings who now supports the local authority’s case. He plays no part in the appeal.

D is Mr G’s daughter by his former wife. She has a full brother, T, who is a year older. Mr G parted from his former wife in about 1990 when she went to live with Mr C to whom she is now married. The children stayed with him. There seem to have been endless problems about residence and contact to T and D and there was much involvement of the Social Services Department in the lives of these families. Eventually in 1995 a residence order was made in favour of Mrs C but even then the position was far from settled and the turmoil continued.

Mr G married his second wife a few years after the breakdown of his first marriage. She has a daughter by her previous marriage, C, about 2 years younger than D. Seemingly unbeknown to Mr and Mrs G, T was engaged in some sexual experimentation at first with his stepsister C and later with his sister D as well. It developed into an abusive relationship later admitted by T. That was not the end of D’s problems: she was, she says, regularly sexually abused between the ages of about 8 and 14 by her stepfather, Mr C. Although she reported these complaints to the Social Services Department no effective action was taken, at least not for an unaccountably long time. Mr G complained to the Social Services Department about their lack of support. He protested when they proposed to remove her name from the At Risk register. Such was his hostility to the Department and to Mr and Mrs C that he was excluded from the Child Protection Conferences. He remains critical of their involvement in his family.

D was undoubtedly a troubled teenager. In July 1997 she was seen by the Berkshire Adolescent unit who concluded she was not suffering from a mental illness and was not in need of in-patient admission. She caused concern at school by attention-seeking misbehaviour. There was occasional tension between her and C. From time to time relations between Mr G and D were very poor indeed. She wrote to him sometime in 1998. I have not seen the letter. It must have been couched in hurtful terms. He replied with equal if not more vehemence. The flavour of this long letter can perhaps be encapsulated with a few excerpts:-

In her oral submissions to us Mrs G made an impassioned plea for family unity reminding us movingly that she was present at H’s birth and that she and her husband are totally committed not only to H but also to D. Thus immediately after her discharge from hospital following H’s birth, mother and daughter went to live with Mr and Mrs G and stayed with them until it was thought D was well enough to cope. In their care H thrived. Once, however, D was on her own the concerns about her ability to meet H’s needs persisted and grew. She began to express thoughts of suicide and of harming H and she confessed to having shaken H roughly. In about July Mr and Mrs G stepped into the breach once more and assumed responsibility for H. Once again H thrived. During the ensuing months there was considerable Social Service intervention and support. Significantly the first Child Protection Review held on 5^th November 2003 noted that the family had been working with everyone very well. At the end of November D moved into her own accommodation.

From then on matters deteriorated. On 19^th January 2004 D told the social worker she could no longer cope with H and H was taken into care and placed with the foster parents with whom she has remained ever since. These care proceedings commenced. Mr and Mrs G intervened and applied for a residence order.

D’s behaviour had been so erratic that she was referred for psychiatric assessment. Although, as briefly alluded to, she had in her troubled past seen members of mental health teams, this seems to have been the first time that a full assessment had been undertaken. Doctor Akomalafe, consultant psychiatrist, diagnosed her to be suffering from an emotional unstable personality disorder impulsive type but also a recurrent depressive disorder then in remission. He considered that with psychological support the long-term prognosis might be good. It is interesting to note that in his recording the history as being “a picture of some very fragmented family networks which have been supportive but intermittently so”, “D herself reckons most of her problems arose at the time she was staying with her mother”.

The guardian sought a further psychiatric report. Doctor van Velsen recorded a history in which D said that her mother was a “useless” person and mother, that her father was a “pretty useless” father but that Mrs G was “absolutely brilliant”. She also said they had now “put the past behind them” and that father had been supportive to her recently. Doctor van Velsen did not consider D to be suffering from a depressive illness though she agreed she had a borderline personality disorder. “She has a long standing sensitivity to abandonment, precipitated particularly by her parents when they divorced”. In her opinion:-

The local authority’s plans were permanently to remove H from the family and little thought seems to have been given to the grandparents assuming the responsibility. Once they made their stand the focus of attention turned belatedly to them. The local authority arranged for an assessment of their parenting abilities by an independent social worker, Mrs Draper. I have not seen the letter of instruction that was given. They set this in train without the court’s prior sanction contrary to proper practice. The letter of instruction was not produced until Mrs Draper was being cross-examined. It contains this slanted information which Mr Baker Q.C., who now appears for the Local Authority , did not seek to defend:-

Mrs Draper reported that from the outset of the assessment she advised them that it would be very unusual to place a child with carers whose own children had been on the Child Protection Register. That may be true but she was not assessing prospective foster parents or adoptive parents: she was assessing grandparents. Moreover D was placed on the register as being at risk of sexual abuse from Mr C, and Mr G was being endlessly difficult in ensuring she remained there. It may not have a wholly fair point to hold those facts against him. She concluded that she could not make a positive recommendation that H be placed with them and identified “six key factors” that influenced her conclusion. Those factors were:-

Mr G’s continuing to blame either the system or his ex-wife for all the difficulties within the family;

Mr and Mrs G’s deep rooted and longstanding antipathy towards Social Services and the court system which makes it difficult to envisage them working co-operatively with social workers to promote H’s welfare;

Their very negative view of D;

H’s being affected by that negative view;

Their lack of insight into their practising naturism;

Their own lack of a support and network.

H’s guardian at the time, Mr John Hoffman, was critical of that piece of work reporting:-

Perhaps because of that criticism Mrs Draper reviewed her assessment but confirmed her original conclusions. She said:-

The hearing lasted 6 days spread over 6 weeks, the evidence being concluded on Tuesday 15^th February. For personal reasons beyond their control, Mr Hoffman had had to withdraw and was replaced by Mrs Parr and the leading social worker was unable to give evidence. Except for the grandparents, all parties were legally represented, even H’s father whose position was as the judge said “essentially simply to echo that of the Local Authority and Guardian.” He said:-

Judgment was delivered ex tempore on 21^st February, 6 days after the hearing had concluded. Judge Altman is an experienced judge. It must be assumed that he had given himself enough time to marshal his thoughts, plan the structure of his judgment and collate the reasons which would explain his decision. If, as can happen in over-stretched busy courts, a judge comes under too much pressure of time, he must if need be take more time and adjourn his judgment until he is ready. Not to do so is unfair on him and on the litigants. Here Judge Altman was confronted with what he said to be “the most difficult of cases and in many respects a very puzzling one”. I can sense that he was very troubled by it, saying that the grandparents’ case had given him “very great cause for thought” and he has my sympathy. He was, as he said, left without “that extra degree of certainty” and his conclusion somewhat hesitantly expressed was that the grandparents’ case was “probably wishful thinking” and that they were “probably confronting the impossible,” with the emphasis added by me. It was a bitterly disappointing result for the grandparents to hear and they were too upset to apply themselves for permission to appeal. D’s counsel did so on their behalf. We have no transcript of her application but she recollects submitting, with the difficulty one always has just after hearing a lengthy judgment now transcribed over 24 pages, that the judge’s findings, or perhaps the lack of them, did not justify his conclusion. Permission was refused but I think the judge must have been or become aware of the deficiencies in his judgment because the following day he telephoned the guardian’s solicitors with the request that they pass on a message to the other parties. It was this:-

The matter was then listed, I think at the court’s own motion, for the judge to provide any such further reasons as might be identified and the grandparents were directed to file a list of omissions from the findings that they wished the court to reconsider. The grandparents did not attend at that further hearing. No one asked for clarification. No further reasons were given. This troubled me when dealing with the renewed application for permission to appeal. On the hearing on notice the respondents, I asked whether anyone wished to pursue the matter. Nobody did. Nobody wanted to go back to the judge to ascertain what was in his mind. I concluded that if the parties did not want it, then the Court of Appeal would deal with the judgment as it was and that is what I now propose to do.

The real issue for us is to consider whether this judgment as it stands meets the “essential test” identified by Thorpe L.J. in re B at paragraph 11, namely:-

The crux of the case comes on page 21 of the transcript of the judgment when the judge said:-

This is it:-

Upon analysis it seems to me that three factors drove the conclusion that the grandparents’ case was wishful thinking. The first is that they could not demonstrate they could exhibit a history of good and successful parenting. Secondly the prospect of the mother’s complying with their having her child was very unlikely. Thirdly the judge did not view Mrs C as a real partner for them. It was “in those circumstances”, the words I emphasise because they mean “for those reasons”, that the judge was driven to his reluctant conclusion that they were probably confronting the impossible.

Let me deal with his first reason that the grandparents cannot exhibit a history of good and successful parenting. That conclusion seems to me to be quite contrary to his earlier finding. On page 3 he said this:-

I struggle to understand how if the court had not engaged on that fact finding exercise he could base his conclusion upon just such a finding. I am not even sure how he could suggest the court had not been asked to engage on that exercise given that he was saying on page 6:-

Moreover at page 12 he said this:-

There were several observations to make about that passage. If he did not know where the truth lay in all that history then the local authority had failed in the burden of proof which was upon them to prove matters which supported their case that the proper order to make was a care order. He seemed to be reversing the burden of proof. Furthermore, there was scant evidence, if any at all, that all three children in that household were disturbed. T had his sexual problems as an adolescent but we know little else about him. Stepsister C may have had some learning disability but there is nothing to suggest that she is at all disturbed. D herself undoubtedly led a troubled life suffering as she did from the breakdown of her parents’ marriage. If the reasons for her personality disorder can be laid at the door of either or both parents – and there is no medical evidence about the aetiology of this condition – then not a great deal of substance is proved against the father and the much more questionable behaviour relates to what happened in her mother’s home.

D had at times alleged that her father had been physically violent to her. She also alleged he had sexually abused her. As to his alleged aggressive and violent behaviour the judge found that “it is quite impossible at this point in time to make any judgment whatsoever”: see page 8. Of the allegations of sexual abuse he held on page 12 that whether that was pure invention or whether it was true was “not penetrable”. Neither of these matters were relied on by the local authority by the time their closing submissions were made.

The other aspect of the history which had caused concern was the failure of Mr and Mrs G to protect the children from sexual abuse and the lack of appropriate sexual boundaries. In their closing submissions the local authority did not pursue findings on those matters.

The chronology I have seen reveals D complaining of her stepfather’s indecent touching of her. Not a great deal seems to have been done about it. The judge heard Mrs C on some of these matters. He found her “a most unimpressive witness”. He was critical of her for never expressing any anxiety about D’s allegations “and indeed joining in due course with Mr C in attributing any responsibility for anything untoward to the mother, as her being the leading force in relations with Mr C”. It seems likely that part of Mr G’s antipathy towards the local authority was their failure properly to respond to D’s complaints of what was happening to her in her mother’s home.

The local authority invited the judge to make a finding that Mr G caused his children emotional harm. He did not do so. In so far as he dealt with this at all, he limited his observations to the 1998 letter.

At the end of all of this I am left wondering what is left of the case that the grandparents cannot demonstrate a history of good and successful parenting. True it is that D now has her problems. True also that the children of this divorced couple lived through unhappy times but whilst it may be easy to say they were not auspiciously successful parents, that is not enough and it is difficult to see any clear and satisfactory finding of precisely what they did wrong and how they failed.

The judge’s second main reason was the unlikelihood of D accepting that her parents should have the care of her child bearing in mind the nature of her illness with its propensity “to have its ups and downs”. Doctor van Velsen was not required by the joint instructions she was given to consider this and consequently her report is silent on the question. The judge did make a finding at page 14 based on her oral evidence that Doctor van Velsen said there is a danger that the mother would become jealous of the care and attention given to H and may then challenge the grandparents. There is no analysis of the extent of that danger nor how it could be contained, especially with help from the Social Services Department. If D was living with the grandparents the Social Services Department would be bound to provide such help and assistance and whilst, therefore, the risk of the placement becoming unstable is one for the judge to bear in mind, it does not appear to me to be one at the centre of the Local Authority’s concerns as they assessed Mother and grandparents. There was no real investigation of the grandparents’ ability to withstand any such disruptive behaviour from D. It is not at all clear whether the recommended psychological treatment would enable D more easily to contain any jealous impulses.

The third factor was that Mrs C could not be “a real partner” in the upbringing of this child. I did not understand that she was being put forward as such. There was not a great deal of love lost between Mr G and Mrs C. Mr C was certainly most unwelcome in the G household and seems unlikely to be allowed to cross the threshold. The danger he posed to young girls was likely to be contained by Mr and Mrs G who would ensure he had no contact. Mrs G explained to us that they are now on better terms with Mrs C and called her to show a united family front to keep H within the family but very much within their family unit. So I cannot quite see how this is a factor of such great importance.

If one looks earlier in the judgment the judge dealt, as he had to, with the assessment of the grandparents by Sheila Draper. He concluded:

The question which arises is whether the judge has subjected Mrs Draper’s report to proper critical scrutiny. I must, therefore, look at her six factors. The first is their blaming either the system or Mrs C for all the difficulties within the family. It will be recalled that in her second report she reiterated one of her greatest concerns to be their not taking responsibility for their own actions preferring to blame others. The judge addressed this on page 4 saying:-

On this topic Mrs Parr questioned the motivation of the grandparents in pursuing their application but the judge expressly disagreed with her saying:-

As to her second reason being their inability to co-operate with the social workers to promote H’s welfare, no reference is made to what I would have thought was an important factor, namely, the fact that for the seven or so months when D and H lived with Mr and Mrs G the child thrived and moreover as Mr Hoffman, the guardian at the time noted “all family members are reported to have worked well with the professionals involved”. He was able to point out that the reason for the difficult relationship between the local authority and Mr and Mrs G is “a complex one”. He reported:-

Mr and Mrs G strongly make the point that recent history might be a more accurate prediction of the future, or at least it ought not to be overlooked. It does not appear to me to have been given weight by the judge.

Mrs Draper’s third factor was the negative view the grandparents held of the mother. This was her other great concern. The judge expressly differed. He rejected her opinion considering that Mrs Draper was perhaps “a little too harsh in judging the way in which that letter [of 1998] was written”. He recorded and seemed to accept “the most loving evidence given by Mr and Mrs G :”We love her and want to do the best for her and H”.” In addition he felt that:-

The fourth point taken by Mrs Draper was that the grandparents’ negative views of the mother might be transferred to the child leading to a dysfunctional upbringing. If, however, the grandparents are not negatively but sympathetically disposed towards D, then that point disappears. Mr Hoffman made this point which it seems to me has its force:-

D appears in this appeal by leading counsel, Mr Hayden Q.C., to support the grandparents’ application and Mrs Draper’s pessimism may, therefore, need to be tempered.

The fifth point made by Mrs Draper was that Mr and Mrs G “lacked insight into how their preference for nudity could affect a developing adolescent. In her view “neither of them was prepared to reflect on this for the future and could see no potential connection with unclear boundaries and the sexual abuse of D and C. Quite the contrary view was expressed in the report from the Vane Foundation enquiring into the grandparents’ understanding of the risks of sexual abuse and the need to protect the children in their care. Mrs Gregory reported at paragraph 78:-

The judge agreed. He held at page 16:-

Mrs Draper’s final factor was the lack of a main support network finding that that network consisted only of members of the family who were equally dependent upon Mr and Mrs G. That was not the view of Mrs Parr the guardian. She concluded:-

It seems to me that very little support for Mrs Draper’s opinion remains. The judge seems to me to discount both her main concerns. He expressly differed in two respects not just as to the negativity of their views of D but also as to their going around the house naked. There is little support for the other four justifications for her rejection of the grandparents.

Mr Baker submits that the crux of the judgment lies in the penultimate paragraph I quoted in paragraph 18 above where the judge says that “in those circumstances” he was most regretfully driven to conclude that the grandparents were confronting the impossible. He felt that because there are complicated family situations, “the balance cannot really be struck in a way that leaves everyone sure that Mr and Mrs G will provide protection and a risk-free environment for the child.” He submits that the essential finding is that the grandparents cannot be trusted to resist disruption of the placement by D.

I cannot accept that submission despite the measured and therefore cogent way Mr Baker has argued his case in the face of acknowledged shortcomings in the judgment as a whole. By his introducing that paragraph with the words which I have emphasised before - “In those circumstances “ - the judge was affirming that it was for the three reasons set out in the preceding paragraph that he was driven to his unhappy conclusion. The risk of disruption was but one of them. When he spoke of the “balance” not really being able to be struck, I am not sure what factors he was weighing in his balance. The right of the child to grow up in her own family is surely a crucial factor but it receives scant if any recognition. He does not identify what protection cannot be provided nor from whom nor against what. It is all rather too Delphic. It fails the Thorpe L.J. test because I cannot confidently understand the process of reasoning by which the judge has arrived at the essential findings of fact, nor exactly what facts he is placing in the scales of judgment. In such an important a matter as the permanent removal of a child from her family fairness not least to the child demands more clarity of reasoning than Judge Altman gave in this case. I remain genuinely puzzled as to why and how he decided as he did. I am inclined to think there is force in Mr Baker’s point that out of kindness to the grandparents he was striving, as Mr Baker puts it, to let them down lightly but sympathy does not absolve him from making harsh findings where necessary and spelling out the consequences explicitly. I would allow the appeal for the inadequacy of the fact finding and reasoning.

That is not the only reason why I would allow the appeal. I am acutely conscious of the deference this court must pay the trial judge especially where he has had such a unique opportunity to assess the main protagonists in his court. Here, however, it seems to me for the reasons I have given that the judge’s main conclusion that the grandparents’ poor parenting made them an unacceptable risk as carers for H is directly in conflict with his findings that he could not decide the extent to which their care of the three children in their household did fall below an acceptable standard. This undermines one of the three central findings upon which his conclusion is based. Moreover, when he came to apply Mrs Draper’s six tests he said he accepted her report save only to the extent “to which in a very modest way I would query her conclusion [as to] whether or not the negative view of the mother, which was expressed in earlier days, is still such a prevalent one on the part of the grandparents in this case”. That was not the only way in which he expressly disagreed with her. He disagreed with her about the practice of naturism. Both of her serious concerns seem to me to be undermined by his differing assessment. There was therefore only the most dubious support for her views on a critical part of the case. The grandparents not surprisingly feel they been unfairly assessed.

I would therefore allow the appeal. This is not a case where we can possibly come to our own conclusion and regrettable though it is that H will suffer from the further delay of a rehearing, it is better that the matter be reconsidered by a judge of the High Court and I would so remit it. I would be grateful for further help from counsel - and I pay tribute to help both have given us – and would ask them to agree if possible what directions we can give for further assessments of the grandparents and the mother and what agreement they can reach to limit the issues that will need to tried on the rehearing.

I agree.

I also agree.