L (a child), Re

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.

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.

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.

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”.

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.

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.

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.

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.

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”.

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:

As the judge found:

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 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:

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:

As to the parents’ drug misuse, the judge recognised that:

Although the judge was satisfied that M was further into her recovery than F and to that extent the outlook is somewhat more optimistic,

She concluded that:

The judge recorded that:

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.

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:

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.”

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.”

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.

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.

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.

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

The material parts of the order provide as follows:

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:

allocating E her own social worker;

carrying out life story work directly with E;

referring M, GM and GF to family therapy at Springfield Hospital;

organising contact and supervising contact for M and her daughter

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;

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 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 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.

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:

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:

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.

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.

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.

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

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:

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

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?”.

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.

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.

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:

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:

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:

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:

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.

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.

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.

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.

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?

GM’s case rests essentially upon three foundations:

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.

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.

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.

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.

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.

Their complaints are not wholly without justification. The judge did find:

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.

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.

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.

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

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.

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

I agree with the judgment of Ward L.J.

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.

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.

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?

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.

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.

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.

I agree with both judgments.