KN v Caerphilly County Borough Council & Ors

We are concerned with a little boy, E, who was born on 8 June 2003 and who is therefore now 3¾ years old. On 12 November 2004 he was admitted to hospital in circumstances which subsequently gave rise to the care proceedings which we are asked to review. He was discharged from hospital on 18 November 2004 into the care of his paternal grandmother, with whom he has lived ever since. So he has been living with her for almost two-thirds of his life.

Care proceedings were begun by the local authority on 17 January 2005, following a demand by his mother that E be returned to her care. Subsequently the proceedings were transferred to the High Court, where they and all the consequential applications have been dealt with by Mr Peter Hughes QC, sitting as a Deputy High Court Judge.

There was a lengthy fact-finding hearing before the Deputy Judge. It commenced on 3 October 2005 and lasted for 13 days, ending on 16 November 2005. The Deputy Judge gave judgment on 1 December 2005. He found that E had been the victim of various forms of non-accidental injury, including two episodes of poisoning with amphetamine on 11 and again on 12 November 2004. He found that E’s mother was the perpetrator. He exonerated the paternal grandmother. Inevitably, in these circumstances, he found threshold established.

It is important to note that although E’s mother has never accepted the Deputy Judge’s findings – she asserts that the paternal grandmother was the perpetrator and says there has been a miscarriage of justice – there is not, and never has been, any challenge in this court to the Deputy Judge’s findings as set out in his judgment of 1 December 2005. But there has, in consequence, been a very serious rift between the maternal and paternal families.

The litigation moved forward. As matters developed the only real issue was whether E should remain living with his paternal grandmother or be adopted outside the family. Reports were produced by an independent social worker, Pauline Lawrence, and by a consultant psychologist, Professor Ostapuik. Neither was supportive of the paternal grandmother’s case.

Ms Lawrence drew attention to the rift between the two families:

“There is a very deep rift between these two families. I formed the view that there is little chance of [E] being brought up with any sense of integration of the two sides of his identity if he remains living with [the paternal grandmother]. [The paternal grandmother] trusts in her own instincts and has a track record of doing things her own way. In the last year she has taken advice and complied with professional thinking.

… There is still time prior to a final hearing for the parties to consider their positions. If conflict remains the hallmark of the interaction between the two families, it is my view that [E]’s needs might not be able to be met within a family placement, despite [the paternal grandmother]’s best intentions.”

Undaunted, on 10 August 2006 the paternal grandmother issued an application for a special guardianship order.

The final hearing started in September 2006 but in order to accommodate Professor Ostapuik’s commitments his evidence was heard first on 11 August 2006. His position remained fundamentally unaltered. He identified the advantages of an adoptive placement but, as against that, recognised the disadvantages of disruption, loss of E’s primary attachment to the paternal grandmother and the potential for long-term attachment difficulties. However, on balance, he favoured placement outside the family and expressed the view that E had the capacity to develop positive and healthy new attachments in an adoptive family. He said that:

“on the basis of all the information that I have at my disposal I would have to agree that [E]’s interests would be better met in the long term by an adoptive placement.”

But he did identify the possibility of a different outcome if the paternal grandmother was able to “relocate somewhere quite distant, which … breaks all the family ties.”

This caused the paternal grandmother to implement the plan which she had been toying with since January 2006. She decided to move about an hour’s drive away from the area where she and the maternal family had all previously been living. Her commitment to E is illustrated by the fact that in order to achieve what she believed – and still believes – is best for him she was and is prepared not merely to move away from the community in which she has spent her life but to leave behind there her own partner. At one stage she was also prepared to contemplate leaving behind the 15 year old niece whom she has been fostering for over nine years.

The hearing resumed on 6 September 2006. Very shortly before, on 1 September 2006, the local authority executed what the Deputy Judge understandably described as a total turnabout which took everyone by surprise. What had been intended to be the local authority’s care plan had been filed on 31 July 2006. The plan was for adoption outside the family. The local authority’s position at that stage was that it could not support the paternal grandmother’s application for residence. But on 1 September 2006 the local authority filed a report for the court on the special guardianship application fulsomely supportive of the paternal grandmother’s application.

In the judgment which he delivered on 3 October 2006 the Deputy Judge was scathing in his criticism of that report, pointing out the marked contrast it represented with the views expressed only a month earlier by its author in her witness statement supporting the local authority’s plan for adoption. He described the report as “wholly inadequate” and noted that it did a potential disservice to the paternal grandmother’s case in unduly raising her hopes and expectations. Nonetheless, as the Deputy Judge was careful to point out, whatever criticisms might be levelled at the local authority, it was “vital” that the paternal grandmother’s proposals for E’s future be examined on their merits. And that was the task he set himself.

There was a further report from Ms Lawrence. The Deputy Judge heard evidence from Ms Lawrence, further evidence from Professor Ostapuik and evidence from E’s children’s guardian. Neither Ms Lawrence nor the children’s guardian felt able to support the paternal grandmother’s case.

The Deputy Judge correctly identified the two core issues as being (i) the risk, if any, E’s mother might pose to E in the future and its relevance, if any, to the proposals for his future care and (ii) the viability of the paternal grandmother’s proposals.

Dealing with the issue of risk, the Deputy Judge found himself bound to agree with the guardian’s conclusion that not only would E’s mother be likely to try and undermine the paternal grandmother’s role as primary carer, but that E would be at risk of further physical harm from her.

The Deputy Judge also agreed with the opinion expressed by Professor Ostapuik in his evidence on 11 August 2006 that, however protective the paternal grandmother might try to be, as E develops he will be “constantly faced with an unresolved conflict between significant people in his life,” which “would be a source of tremendous emotional distress for him.” Without a significant change in the relationship between E’s mother and his paternal grandmother, the relationship was likely to be fraught with difficulty, giving him (the Professor) grave concerns that E would be drawn into the conflict. The conflict was not going to disappear, E would remain the focus of it, and there would be animosity between the two families about the sharing of his care.

The Deputy Judge concluded as follows:

“In summary, the risk of harm to [E] that [his mother] poses is a risk of further physical harm and, arguably of more significance, of long-term emotional harm because of the unresolved conflict between the two families.”

Turning to consider the viability of the paternal grandmother’s proposals, the Deputy Judge carefully considered the expert evidence.

Ms Lawrence did not see E moving away from the area with his paternal grandmother as the solution. It put things on the back burner without resolving issues about E’s identity and his image of his maternal family. In her oral evidence she said:

“Stranger adoption offers [E] more space to be able to assimilate and integrate the whole story into the rest of his life. [The paternal grandmother] does not have the perception or skills to manage difficulties that will arise in the future.”

She added, “He needs a replacement family that will give him a fresh identity.”

In her report, the children’s guardian expressed her concern about the paternal grandmother’s ability to care for E in isolation and questioned how sustainable and reasonable her position was. She also questioned the effect on E of not being able to have access to a full, normal family life. Her concerns were elaborated in her oral evidence. She thought that the paternal grandmother’s plan was not thoroughly thought through, that it was a drastic response to the prospect of losing E, that the paternal grandmother had not fully appreciated the changes to her way of life that her plan involved, in particular the absence of support from her partner and members of her family, and that in time the paternal grandmother would gravitate back to her family.

Professor Ostapuik took a rather different view. He identified his concern as being whether the paternal grandmother would be able to care for E “safely outwith the influence of the other family members and relationships which I felt had the potential to destabilise her in her efforts to parent [him].” He continued:

“However, if it is possible to demonstrate that she can parent [E] away from that influence, and that might mean physically moving away, which I believe is now what she is talking about, then I am more optimistic about the prospect of her being able to parent him effectively and safely.”

He acknowledged in answer to a question from the Deputy Judge that there was a risk that it might fail. He summarised his position as being that:

“unless the court is satisfied that [the paternal grandmother] is able to make the break, physical and emotional, has the capacity to set up a new home for [E] in circumstances that are going to be wholesome, protective and safe, if the court cannot be satisfied that that can be achieved soon, if not immediately, then I would have concerns that this was long term a viable prospect, and that an alternative permanent solution should be looked for.”

The Deputy Judge expressed his conclusions in a passage which I should set out in full:

“[E] faces the prospect of substantial disruption in his life in any event. Either he leaves the home in which he has been settled and secure for the last two years, for a future in a new environment with [the paternal grandmother] or he moves to an adoptive placement in a new family. The obvious advantage of the first course over the second is the preservation of the primary attachment to his “mother figure”. I have to consider whether the advantage of this is so clearly and sufficiently outweighed by the benefit of an adoptive placement as to justify the latter course.

Having listened to the evidence and considered the submissions, I have reached the clear conclusion that the benefits for [E] of a new future in a replacement family outweigh the advantages of staying with [the paternal grandmother] but in a new environment away from other family members. It is a sad conclusion, which I know will cause a lot of distress, but in the ultimate analysis I have not found it a finely balanced decision. In my judgement the advantages of a fresh start in a new family away from the conflict which has so affected his young life heavily significantly outweigh the benefits of the alternative of remaining with [the paternal grandmother] and the two of them moving to a new area to live.

I prefer the evidence on this aspect of Ms Lawrence and the Guardian to that of Professor Ostapuik. He did not have the advantage which they had of listening to the evidence. He said himself that he would have preferred to interview [the paternal grandmother] and to discuss her proposals with her, before expressing a view. I am not attracted to his suggestion of a period of delay to see whether [the paternal grandmother] can make the physical and emotional break with her home environment and family. It raises the prospect were she to fail of yet further delay, disruption and uncertainty for [E], and would be acutely traumatic for [the paternal grandmother], who would have abandoned her home, her partner, and [her niece], to no avail.

[The paternal grandmother] might well succeed in making the break for a trial period. Much more testing for her, I feel, would be the longer term as both she and [E] get older, away from family and friends. Were the arrangements to break down at a later stage, it would make it much more difficult to provide [E] with a new secure and stable replacement family.

I agree with the opinion Professor Ostapuik expressed originally on the 11th August that [E] needs a fresh start as soon as possible.

I, also, have reservations as to whether the traits in [the paternal grandmother]’s personality identified by the Professor are capable of change. Having had the opportunity to observe [her] giving extensive evidence both in this and earlier fact-finding hearing, they appear to me to be deep-rooted and an important part of her make-up.”

The Deputy Judge added this:

“I have no reason to doubt that [the paternal grandmother] genuinely wants to do the best she can for [E] and believes that the solution she is offering, and prepared to make considerable personal sacrifice for, is best for him. I do not believe, though, that she can separate in her mind what is best for [E] from what she wants for herself. As she said in evidence, it is the awfulness of the prospect of losing [E] that is the driving force in her decision. I am satisfied that she simply cannot bear to let go, and that she is prepared to sacrifice almost anything as the price for keeping him. I do not think that she has properly thought through her plans, or the impact they will have on her, on [E], and on important members of her family. I am afraid that it is, in my judgement, a valiant but ill-considered attempt to hold to what she cannot bear to lose.”

He continued:

“I, also, seriously doubt the long-term viability of the proposals, and whether they will achieve their end of protecting [E] from the family conflict. I share the concerns of the guardian that in time [the paternal grandmother] will gravitate back to [her home town]. She proposes to return on a weekly basis, in any event, to see her mother. She will bring [E] with her to allow him to see his father and great-grandmother. If [E’s mother] is determined to seek [E] out and to undermine the placement, this could, easily, provide her with the opportunity. The [two] families come from a close knit community. If [E’s mother] made it her business to track him down, I suspect that it would not take her long to do so.”

The outcome was that the Deputy Judge dismissed the paternal grandmother’s application for a special guardianship order, declined to approve the local authority’s present care plan and invited the local authority to re-consider its care plan. The local authority acceded to that invitation and produced a final care plan on 1 November 2006 providing for E’s adoption outside the family. The same day the Deputy Judge approved that care plan and made a care order.

The Deputy Judge refused the paternal grandmother permission to appeal. Wall LJ likewise refused her permission on the papers on 21 December 2006.

The local authority’s application for a placement order came before the Deputy Judge on 8 January 2007. The hearing lasted four days. The Deputy Judge gave judgment on 11 January 2007. Not surprisingly, there having been no material change in circumstances in the meantime, and having himself approved a care plan for adoption only two months previously, the Deputy Judge made a placement order.

Both the length of the hearing and the careful and detailed judgment he gave, show that the Deputy Judge was far indeed from treating this as a simple ‘rubber-stamping’ exercise. He carefully re-examined the evidence in the light of the relevant welfare checklist under the 2002 Act. His conclusion, however, was clear:

“nothing has happened in the short period between the care proceedings and now to alter the conclusions I reached then on the anxious choice between [the paternal grandmother]’s proposals and the alternative of an adoptive placement in a new family.”

Addressing section 1(4)(e) he said:

“The essential point is that there is a serious risk of future harm, possible physical harm, but more importantly emotional harm, unless he is protected from the unresolved conflict between the two sides of his family as he grows up.”

The Deputy Judge recognised what E would lose if adopted. Referring to section 1(4)(f) he said:

“[E] will lose his relationship with his family members through adoption. His relationship with [the paternal grandmother] as his primary carer is particularly important to him, and the care plan recognises this by endeavouring to find a placement in which [E] will be able to have contact with her, four times a year as recommended by Professor Ostapuik. In recognition of the significance of the relationship with [his father] too, it has been agreed that the objective should be to find a placement, if possible, that will allow him to share the contact with his mother.”

Nonetheless the Deputy Judge decided that a placement order was in E’s best interests and that E’s welfare required the consent of his parents to be dispensed with. He said that a placement order was, in principle, the most appropriate way of seeking to ensure E’s welfare throughout his life.

The Deputy Judge was invited to make an order for contact under section 26 of the Act. He declined to do so, saying:

“I do not consider that it would be appropriate for me to make orders for contact under Section 26 of the Act. The primary objective is to enable [E] to integrate into and become a full member of his new adoptive family. That process will not be assisted by continuing contact with his mother and maternal family, and such contact would not be for his benefit. Different considerations apply to [the paternal grandmother] and [E’s father]. If a placement can be found which will allow for contact, limited continuing contact may assist rather than undermine that process. I should emphasise, though, that the contact has to be for the benefit of [E] in his new placement and respect his wishes and feelings. Its purpose is not simply to allow his paternal family to retain some contact with him. In my view appropriate provision for contact is made within the care plan and it is neither necessary nor appropriate for the court to exercise its power to make Section 26 orders.”

On 7 February 2007 Chadwick and Scott Baker LJJ gave the paternal grandmother permission to appeal against the care order and the Deputy Judge’s dismissal of her application for a special guardianship order. The Deputy Judge subsequently gave her permission to appeal against the placement order. At the opening of the appeal we gave her permission to appeal out of time; there had been funding and other difficulties. We also gave both the paternal grandmother and the local authority permission to file additional evidence.

Having heard Ms Henke QC on behalf of the paternal grandmother and Ms Heyworth, who adopted a similar stance, on behalf of E’s father, we indicated that we did not need to hear either from Mr Allen on behalf of the local authority or from Mr Hopkins on behalf of the guardian. We announced that both appeals would be dismissed for reasons which we would put in writing.

It is convenient to deal in turn first with the appeal against the orders the Deputy Judge made following his judgment on 3 October 2006, next with the appeal against the making of a placement order and finally with the appeal against the Deputy Judge’s refusal to make a contact order.

There is, and could be, no suggestion that the judge either misdirected himself in law or otherwise erred in principle in the judgment he gave on 3 October 2006. He directed himself impeccably. There is no suggestion that the Deputy Judge failed to take into account any relevant factor or that he took into account any irrelevant factor. The sole ground of appeal is that he was plainly wrong: wrong in his evaluation of the factors that he had to take into account, wrong in his evaluation of the expert evidence and plainly wrong in his eventual decision preferring adoption outside the family to E’s continued placement with the paternal grandmother.

Ms Henke’s submissions can fairly be summarised as follows:

It was for the Deputy Judge to evaluate the various factors which pointed in favour of maintaining E’s placement with the paternal grandmother and the various factors which pointed in favour of an adoptive placement outside the family, just as it was for the Deputy Judge to strike the ultimate balance.

The Deputy Judge had well in mind the strength of E’s attachment to his paternal grandmother, the disadvantages to E both short term and long term of disruption and of removing him from his paternal grandmother’s care and the potential for long-term attachment difficulties that Professor Ostapuik had identified. But he also had very much in mind the ongoing risks to E of remaining with his paternal grandmother. The Deputy Judge identified a risk of physical harm from the mother and, more significantly, the risk of emotional harm arising out of the conflict between the maternal and paternal families. The Deputy Judge was entitled to find that both risks were present though the risk of emotional harm was more important – in which view he was almost certainly correct.

It is important to realise that Ms Lawrence, the guardian and, significantly, Professor Ostapuik were at one in recognising that the status quo was not an option, not least because, as Professor Ostapuik had put it, E would be constantly faced with an unresolved conflict which would be a source of tremendous emotional distress for him (my emphasis). That was a factor which, inevitably, lay heavy in the balance against all the advantages which E might otherwise enjoy from continuing to live with his paternal grandmother. Hence the significance which the Deputy Judge rightly attached to the issue of the viability of the paternal grandmother’s proposals.

Understandably Ms Henke puts Professor Ostapuik’s views at the forefront of her case, but it is important to bear in mind how heavily he qualified his final opinion. He accepted that there was a risk that the paternal grandmother’s plans might fail. But he made it clear that it was for the court to satisfy itself that the paternal grandmother would be able, as he put it, to make the break, physical and emotional, to set up an appropriate new home for E, and, moreover, to do so soon. His advice was clear: if the court could not be satisfied of all that, then an alternative placement should be looked for. The Deputy Judge gave cogent reasons for concluding that he could not be so satisfied. As the Deputy Judge put it, and this was a conclusion that was plainly open to him on the evidence, “I … seriously doubt the long-term viability of the proposals, and whether they will achieve their end of protecting [E] from the family conflict.”

In my judgment the Deputy Judge cannot be faulted in his analysis and evaluation, either of the various factors that had to be put in the balance or of the way in which the balance should finally be struck. No doubt the physical risks had been adequately managed thus far, and also to an extent the risks of emotional harm, but the Deputy Judge was presented with compelling evidence, not least from Professor Ostapuik, that the future risks of emotional harm were very real and unacceptably high. Moreover, the Deputy Judge, though far from unsympathetic to the paternal grandmother, was also alive to a significant amount of material suggestive of limitations in her ability to safeguard E in future.

The Deputy Judge cannot be faulted in his critical analysis of the special guardianship report. Nor can I accept that the Deputy Judge failed to give proper weight to Professor Ostapuik’s views. On the contrary, and as his judgment makes clear, the Deputy Judge paid very careful attention to Professor Ostapuik’s evidence and, indeed, accepted significant parts of his analysis. He was fully entitled to reject Professor Ostapuik’s recommendation, not least because he was not satisfied of the very matters which the Professor himself had identified as a pre-requisite to implementation. The Deputy Judge was also entitled to conclude that further time should not be spent in testing the viability of the paternal grandmother’s proposals, not least given the risks of failure which he had identified.

Despite everything that Ms Henke has said, the Deputy Judge, in my judgment, was entitled to decide as he did and for the reasons he gave. The appeals against the refusal of the special guardianship order and the making of the care order must be dismissed.

I turn next to the appeal against the placement order. It can be summarised as follows:

I can take the second and third of these points together.

As to the second point, the short answer, in my judgment, is that the Deputy Judge had well in mind any shortcomings in the two reports. He said, “Viewing the documents in isolation, there may be force in these submissions.” However, as he went on to point out:

“It would be wrong, though, to lose sight of the wealth of information already available to the court, and the careful scrutiny that the case has received in this and previous hearings.”

Ms Henke tries to persuade us (and her arguments under the second and third points overlapped here) that this approach was erroneous both because it failed to take account of the important differences between the checklists in the 1989 Act and the 2002 Act and because it failed to evaluate the impact of the plan for adoption on E “four months further down the line” and nine months since Professor Ostapuik had seen E.

There is, with respect to Ms Henke, no substance in either of these suggestions. The Deputy Judge was well aware of the differences between the two welfare checklists and directed himself meticulously by reference to the checklist in the 2002 Act. Moreover, he correctly directed himself by reference to matters as they stood in January 2007. But he was plainly entitled to find that there had been no material change in any of the relevant circumstances since he gave judgment on 3 October 2006 and in that situation was right to be heavily influenced by his previous decision.

This takes me back to Ms Henke’s first point. I can take this very shortly. I have already explained why, in my judgment, the Deputy Judge had plainly been entitled to decide as he did when approving the care plan for adoption following, and in accordance, with his judgment on 3 October 2006. Moreover, he was, as I have said, plainly entitled to find that there had been no material change in any of the relevant circumstances since then. In this situation, and making every allowance for the important differences between the two exercises and between the welfare checklists under the 1989 Act and the 2002 Act, it would, in my judgment, have been little short of perverse if the Deputy Judge had refused to make the placement order which was necessary if the care plan he had approved only two months previously was to be implemented. Be that as it may, the Deputy Judge was, in my judgment, quite plainly entitled to decide as he did and for the reasons he gave.

The appeal against the placement order must be dismissed.

The final appeal relates to the decision of the Deputy Judge not to make a contact order under section 26 of the 2002 Act, so as to ensure that E continues to have contact with the paternal grandmother (and his father) at least four times a year after adoption. It is said that his father and paternal grandmother should not have been left in a situation where they may have to make a further application, not least in circumstances where its previous vacillating conduct suggests that the local authority cannot be relied upon to honour its commitment.

There are, in fact, two questions here. First, was the Deputy Judge entitled to decide that contact should be as spelt out in the local authority’s care plan of 1 November 2006? And secondly, if so, was he entitled to decide that there should be no order? I put it that way because, here again, there can be no sensible suggestion that the Deputy Judge misdirected himself. The question is whether he was plainly wrong to decide as he did. In my judgment the argument is doomed to failure. The Deputy Judge gave compelling reasons for approving this part of the care plan, namely, to put it shortly, that although it was desirable that E should continue to have contact with both his father and his paternal grandmother that would, in the final analysis, and if adoptive parents could not be found who would agree, have to give way to the overriding imperative to find him an adoptive placement outside the family. Having reached that conclusion the Deputy Judge was entitled to conclude that no order was necessary. He had – properly – been critical of the local authority and had its previous shortcomings well in mind, but he concluded, and in my judgment was entitled to conclude, that as matters stood the local authority could be relied upon to honour the commitment spelt out in the care plan.

The appeal on this point accordingly must be dismissed.

This is in many ways a heartbreaking case, heartbreaking in particular for a father and a grandmother who are, in their own ways, as much victims of the mother’s actions as E is himself. The Deputy Judge was faced with a difficult and complex case. His three judgments are eloquent testimony to the anxious, patient and meticulous care with which he approached his unenviable tasks. Ms Henke has said everything that could have been said in support of these appeals but, as she was the first to recognise, she faced an uphill – in truth an almost impossible – task.

There is, and could be, no suggestion that the judge either misdirected himself in law or otherwise erred in principle, either in the judgment he gave on 3 October 2006 or in his subsequent judgment on 11 January 2007. He directed himself impeccably. Nor can it be said that the Deputy Judge failed to take into account any relevant factor or that he took into account any irrelevant factor. In these circumstances, the sole ground of appeal – the only possible ground of appeal – is that he was plainly wrong. Ms Henke, with the assistance of her junior, Ms Radcliffe, and of Ms Heyworth on behalf of E’s father, has striven to make good that contention. But with all respect to her arguments I simply cannot accept it. The Deputy Judge, who took immense care and set out his reasoning in careful and compelling detail, was in my judgment plainly entitled to decide as he did and for the reasons he gave.

As Wall LJ explained when initially refusing permission to appeal, the powers of this court are limited. Absent misdirection or error in principle we can interfere if, and only if, the judge was plainly wrong. The Deputy Judge in this case was not plainly wrong. Indeed, I cannot help thinking that if I had been in his position I would very probably have come to precisely the same conclusions. I do not know whether that will be of any comfort to E’s father and grandmother. Perhaps not. They will, I hope, have the comfort of knowing that they have done everything possible for E – including in the case of the paternal grandmother appearing in person before Chadwick and Scott Baker LJJ in her valiant, and successful, endeavour to obtain the permission to appeal which had previously not been forthcoming. That is a measure of her commitment to E, and it deserves recognition.

I agree.

I agree.