E-R (A Child), Re

This is an appeal from a child arrangements order made by His Honour Judge Vincent at the family court sitting at Truro on the 30^th January 2015. The judge’s order provided for a little girl, T, born 22 July 2009 (5 years 9 months) to move to live with TR (her father), and JB (his partner) and, thereafter, to have extensive contact with the Appellants with whom T and SH (her mother) were currently living. The judge dismissed the Appellant’s application for a special guardianship order in respect of T. The unusual and tragic feature of the case is that the variation of T’s current living arrangements provided for by the order were to take effect only upon the anticipated death of T’s mother.

The principal issue in the appeal turns on whether the judge had erred in law, having conducted his welfare analysis on the basis that there was “a broad natural parent presumption in existence under our law”. The Appellants appeal only the child arrangements order and do not appeal the judge’s refusal to make a special guardianship order.

The parents were in a relationship from 2007. When T was born in July 2009 the father’s name appeared on the birth certificate and he has therefore had parental responsibility throughout T’s life. The parents separated in March 2011. In September 2011 when T was 20 months old, the mother then aged 44, was diagnosed with terminal breast cancer; an attempt on the part of the couple to reconcile in the light of the mother’s diagnosis was a short lived.

The separation was acrimonious, a restraining order was made against the father on the 17 January 2012 and in March 2012 he was fined for breach of that order. The relationship finally came to an end in November 2012 and not long after that the father left Cornwall to take up residence in Suffolk. To all intents and purposes the father then lost contact with T and did not see her again until November 2014.

The father is now in a new relationship and lives with his partner of two years JB and her two teenage from an earlier relationship. The father has had some information about T’s progress as until latterly, T has had contact with her half sister I, another daughter of the father who lives with her mother near to T in Cornwall.

In relation to the father’s failure to maintain contact with T following his relocation to Suffolk, the judge said:

“It is fair to say that his evidence was at its weakest over his commitment to T once the strict restraining order has been put in place. On any view he was not proactive and his explanation of the difficulties in his way was not really adequate, viewing it from T’s perspective. There was a sense however of resignation in him to M’s negative view of him. One has to ask oneself just when he would have put his head above the parapet in T’s life had the appellant not made her application. In all possibility that would have been when the mother had died which would have left him, at best as a dim memory in T’s life.”

The appellants are husband and wife and were friends of the mother’s. As her condition worsened the mother and T increasingly relied upon them for support. Initially the mother and T would stay for weekends but in June 2014, as the mother’s condition deteriorated, they moved to live with the appellants at their home in Cornwall. SJH (the female carer), has now been T’s primary carer for 10 months. T attends a local school from which there are glowing reports.

It is hard to imagine how it must have been for this mother to have to face the knowledge that her death was inevitable and that she must leave her young child to be brought up by someone else. By the time of the hearing she had already survived for significantly longer than her original prognosis and inevitably her thoughts were much exercised as to the future of her child once she died; she felt bitter towards the father who she felt had deserted her and T and wished him to have no part in T’s life.

The mother in preparation for her death, named the appellants as testamentary guardians of T. More than anything the mother wanted T to remain with the appellants, believing her to be safe, secure and settled with them; with them the mother felt that T would be best placed to come to terms with the loss and grief that she would suffer after her death.

The court was told this morning that the mother died a week ago on 5 April 2015; one can only deeply regret that she died with this appeal outstanding and without knowing who was to care for her daughter following her death.

In August 2014, at a time when the mother’s death appeared to be imminent, SJH issued an application for a special guardianship order. The judge made a without notice interim child arrangements order so as to confer parental responsibility on SJH in case that the mother died before the return date. The father issued a cross-application for a residence order on the 28 August 2014.

At a case management hearing on the 16 September 2014, the judge directed the preparation of reports in relation to SJH’s application for a special guardianship order and a s7 welfare report in relation to residence. These reports were prepared by a Mr Frankie Brannan who was directed to attend the hearing. Unfortunately Mr Brannan, who retired shortly before the hearing, was on holiday and unable to attend the trial. His attendance was excused by order of the District Judge, despite a request by solicitors for the mother and the appellant that the matter be re-fixed for a time when he was available.

On 16 September 2014 the judge ordered that contact should start as of the 29 November for 3 hours on both Saturday and Sunday fortnightly. The judge found in relation to the reintroduction of T to her father:

“Those (contact) records display to an impartial reader a child who is struggling to come to terms with the resurrection of her relationship with her father. They also display understandably a father who is having to learn again what makes T tick. ”

The special guardianship report recognised that whilst T has a strong network around her, it would nevertheless come as a great shock with “devastating reverberations” when her mother died. Mr Brennan made the obvious observation that it will be at that time that T will require the greatest support. He referred also to the fact that T may need support of a biological parent and of specialist support both to grieve and to come to terms with the fact that the mother will no longer be with her. There is no analysis as to the father’s ability to provide T with that support given his open hostility towards the mother.

Mr Brannan (and the judge) did however refer to the animosity and hostility of the father to the appellants, which hostility is evident from the skeleton argument filed by the father in this appeal. Mr Brannan, in the context of numerous unsubstantiated and serious allegations made by the father about the appellants, expressed his concern that the father may:

“have already created irreparable damage in the relationship between himself and the appellants in which case there is a real possibility that if T remains with the Appellants, any future contact he may have with T would not be of the quality or frequency that would allow a real bond to built between father and daughter.”

At the conclusion of the special guardianship report, Mr Brannan said:

“There is a real danger that if a special guardianship order is made in respect of the appellants then the father will lose contact with his daughter, it is for this reason only that a special guardianship order is not recommended in this case.”

Having recommended that a special guardianship order should not be made, Mr Brannan also filed a s7 welfare report in relation to T’s future living arrangements. That report contains little if any analysis notwithstanding that he refers to the case as a “complex and difficult case with ethical issues at its heart”. Within the report there is no reference to the care T is currently receiving or any assessment of the impact upon her of a change of primary carer immediately upon the death of her mother. In relation to the potential relationship between the appellants and the father, Mr Brannan speculates that most of what the appellants know of the father is tainted by the relationship he had with the mother, but goes on to say that the father “does not do himself any favours by making allegations against both the appellants that are at best spurious. It is this side of his nature also that has seen him being made subject to a restraining order”.

Having said (as noted above) in his special guardianship order report, that the only reason not to recommend a special guardianship order was the fear that contact could not be promoted with the father, Mr Brannan thereafter said within his s7 report, without further analysis that

“to lose one parent is a disaster, the court should not make this into a tragedy for T by losing the other parent. I would therefore respectfully recommend to the court that there be a child arrangements order made in favour of the father with T respectfully placed in his care following the funeral arrangements of the mother”.

Both the special guardianship order report and the s7 welfare report were completed and filed prior to contact between the father and T having been re-introduced. It was therefore all the more unfortunate that Mr Brannan was not available to give evidence so allowing the Appellants the opportunity to explore his recommendation in the light of the progress contact had made by the time the matter came on for trial on the 28 January 2015.

The judge, in respect of the Appellant’s care of T and her ability to promote contact to the father, should T remain living with them, said :

“It is clear to me that she has built up a warm close and supportive relationship with T and has managed the difficulty of being caught up in the midst of essentially a parental dispute in a sensitive level-headed way.

Critically, the judge found that, as far as SJH was concerned, he “detected patience and lack of resentment against the father.”

Having seen and heard SJH give evidence, the judge was impressed by her and by her response to the father, notwithstanding “that she had been the target of some pretty unsavoury allegations from the father” who “simply does not know them”. The judge recorded that SJH regards the father as “T’s father” and foresees a full relationship between him and T. The judge also noted that SJH characterised as “natural” anecdotal evidence of initial distress or unsettlement in T at the reintroduction of her father into her life.

The father was, as he is now, a litigant in person. Having heard him give evidence, the judge had reservations, both as to his lack of commitment to T since the mother was diagnosed with cancer and also as to his lack of insight into how damaging the allegations he had made against the appellants had been. What is clear from the judge’s judgment is that the judge was looking to the father’s partner JB as to what she could offer to the father as a carer for T and also to managing the adult relationships between the other people in T’s life. The judge referred to JB as a conciliator and took the view that she had given “convincing reassurance that the appellant would not be marginalised”. Regardless of JB’s position at trial, this is not an attitude maintained in this court by the father; his case is that SJH should be stripped of her parental responsibility and that there should be limited, if any, contact upon T’s removal to his care.

The judge worked systematically through the welfare checklist. The judge dealt with the change in circumstances for T upon the basis that T will have to face change in any event when her mother dies and that the issue is as to how her carers will support her through the change. There is no separate or additional analysis as to how T could or should, cope with not only the change brought about now by the death of her mother, but also with the additional disruption brought about by a nearly simultaneous change of primary carer and removal to a new family in a different part of the country. There was nothing to assist the judge in relation to this complex issue within either of the reports and Mr Brannan was not at court to deal with it in oral evidence.

The heart of the judge’s decision making is dealt with under the heading of ‘Capability of Identified Adults to meet T’s needs’. The judge approached his task as follows:

There is a broad natural parent presumption in existence under our law and indeed common sense would cause one to recognise that a young child will all other things being equal be best off in the primary care of a parent. Part of the conundrum in this case is working out if all other things truly are equal.

The judge acknowledged that there was a status quo and a track record of SJH having “very capably” met T’s needs over the last (then), eight months. He acknowledged the advantage of providing continuity and stability for T in the difficult period following her mother’s death and noted her friendships and school as potential support.

So far as the father was concerned, the judge rightly reminded himself that parents come in all shapes and sizes with very different characters. He noted that the father has dimensions to his character that can lead to conflict but said that overall he regarded him as capable parent. The judge regarded JB as “hugely capable” and of being an important support to the father. The extent of the judge’s consideration of the stability of the relationship between the father and JB was summed up as follows:

“nobody can say that they will remain together for the whole of T’s minority but their relationship is stable presently with no indication of rifts between them”.

The judge concluded:

“The argument in favour of the status quo therefore is not strong enough to displace the proposition that the father as a capable parent should assume T’s care upon her mother’s death.”

The judge in making that finding underlined the importance of T’s relationship with the appellants and that future contact would need to be safeguarded by an order.

The judge made provision for T to spend increasing amounts of time in the care of the father and JB and ordered that upon the mother’s death, primary care should shift to the father and JB.

In Re G 2006 UKHL 43; [2006] 2 FLR 629 the House of Lords held in a dispute between a lesbian couple, one of who was the biological parent of the child, that the welfare of the child was the paramount consideration and there was no question of a parental right which might over ride that consideration. Baroness Hale said:

30.

My Lords, the Children Act 1989 brought together the Government’s proposals in relation to child care law and the Law Commission’s recommendations in relation to the private law. In its Working Paper No 96, Review of Child Law: Custody (1986), at para 6.22, having discussed whether there should be some form of presumption in favour of natural parents, the Commission said this:

“We conclude, therefore, that the welfare of each child in the family should continue to be the paramount consideration whenever their custody or upbringing is in question between private individuals. The welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child, in particular to his sense of identity and self-esteem, as well as the added commitment which knowledge of their parenthood may bring. We have already said that the indications are that the priority given to the welfare of the child needs to be strengthened rather than undermined. We could not contemplate making any recommendation which might have the effect of weakening the protection given to children under the present law.”

Nor should we. The statutory position is plain: the welfare of the child is the paramount consideration. As Lord MacDermott explained, this means that it “rules upon or determines the course to be followed”. There is no question of a parental right. As the Law Commission explained, “the welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child” or, as Lord MacDermott put it, the claims and wishes of parents “can be capable of ministering to the total welfare of the child in a special way”.

31.

None of this means that the fact of parentage is irrelevant. The position in English law is akin to that in Australian law, as explained by Lindenburgh J in Hodak, Newman and Hodak (1993) FLC 92-421, and subsequently approved by the Full Court of the Family Court of Australia in Rice v Miller (1993) FLC 92-415 and Re Evelyn [1998] FamCA 55:

“I am of the opinion that the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not, however, establish a presumption in favour of the natural parent, nor generate a preferential position in favour of the natural parent from which the Court commences its decision-making process… Each case should be determined upon an examination of its own merits and of the individuals there involved” (emphasis supplied).”

In her conclusion Baroness Hale said:

“44.

The fact that CG is the natural mother of these children in every sense of that term, whilst raising no presumption in her favour, is undoubtedly an important and significant factor in determining what will be best for them now and in the future.”

In Re B (a child) 2009 UKSC 5; [2010] 1FLR 551 Lord Hope referred back to the passage in Re G set out above, saying as follows:

This passage captures the central point in the Re G case and of this case. It is a message which should not require reaffirmation but, if and in so far as it does, we’d wish to provide it in this judgment. All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child’s best interests. This is the paramount consideration. It is only a contributor to the child’s welfare that parenthood assumes any significance. In common with all other factors bearing on what is in the best interest of the child, it must be examined for its potential to fulfil that aim. There are various ways in which it may do so, some of which were explored by Baroness Hale in Re G, but the essential task of the court is always the same.”

When granting permission to appeal McFarlane LJ said: “It is highly regrettable that the relevant case law was not drawn to the attention of the judge by counsel then instructed”. I respectfully agree. Had the two key authorities been put before the judge he would inevitably have approached his analysis from a different perspective aware that there is no “broad natural parent presumption” in existence in our law. Miss Renton who did not appear in the court below, on behalf of the Appellants submitted that had the judge approached the case from the correct legal perspective, he would not have fallen into error by elevating the father into a preferential position when he commenced his decision making process. The consequence of having done so, submits Miss Renton, is that whilst all the welfare factors properly analysed, pointed to the status quo being maintained, the biological link between the father and T had subverted the welfare factors in favour of a transfer of care to the father as a “capable father”.

I accept Miss Renton’s submission that the judge wrongly conducted his analysis of T’s best interests on the basis that there is a presumption in law in favour of a natural parent. On this basis alone the appeal must be allowed.

In support of her submission that an application of the welfare principle without an elevated presumption in favour of the father would have led the court to conclude that T should live with the Appellants with extensive contact to the father, In her grounds of appeal Miss Renton argued that the facts ‘militated strongly in favour of the status quo’, referring the court to a number of authorities predating Re G and Re B. In particular she relies on Re G (a minor - custody) [1992] 2 FCR 279 and a passage in which Lord Justice Balcombe said:

I would agree that this is not a matter of presumption in the legal sense but, nevertheless, when dealing with the custody of small children undoubtedly, as a working rule, one does not disturb the status quo unless there is a good reason to do so.

In my judgment this observation should be read against the backdrop of the views expressed by Baroness Hale in relation to natural parents in Re G and Lord Hope in Re B. If one translates the term of art “status quo” into something more meaningful by relating it directly to the welfare of a child, it simply refers in the broadest sense, to the current living arrangements of a child. For T, the status quo is that place where she is living and settled, in a familiar environment, cared for by people upon whom she can rely and who are currently offering her the love, security and consistency she needs to enable her to cope with the loss of her mother. The fact that a child of five is in such an environment and has been so for some time, will inevitably be a significant feature of the case and a matter of great importance when assessing the likely effect on her of a change in her circumstances.

In the same way that the fact that a person is a natural parent does not in itself create a presumption in favour of that person in the proceedings, neither does (as Balcombe LJ observed), the fact that a child has been living with a party for a significant period of time; each are factors of significance which will be taken into account and given appropriate weight by a court when determining the best interests of a child Whether any such factor is determinative of a particular case will depend on the unique facts of that case.

A further unusual feature in this case, and one which may trap the unwary into regarding it as a matter of elevated importance, is the fact that pursuant to s5(3) Children Act 1989 (CA 1989), the mother made SJH and her husband testamentary Guardians in the hope that in doing so she would ensure that T was cared for by them after her death.

By s5(6) CA 1989 a person appointed as a child’s guardian has parental responsibility. However where as here, the child has a surviving parent with parental responsibility and there is no child arrangements order directing that T is to live with the named guardian, (here SJH and her husband), the appointment of SJH and her husband as T’s guardians does not take effect for so long as the father is alive and has parental responsibility ( s5(7) & (8) CA 1989). It follows therefore that SJH derives her parental responsibility in respect of T from the order made by the judge in August 2014, and not by virtue of her having been named by the mother as testamentary guardian.

Where there is a dispute between potential carers following the death of a parent with parental responsibility, the court will in the absence of an agreement, make a decision as to that child’s future living arrangements which arrangements will often be reflected in a s8 Children Act: Child Arrangements Order. The making of the decision by the court will be governed by the welfare principle informed by the application of the welfare checklist. The fact that a dying parent has expressed by the appointment of a testamentary guardian, her strong desire that her child should live with a particular person following her death, does not generate a preferential position in favour of the proposed testamentary guardian; rather, the fact of the appointment is another significant matter which will be taken into account and given appropriate weight by a court when determining the best interests of the child.

In the present case,the fact that there is a natural father wishing to care for his child, that the status quo may appear at first blush to point to T remaining where she is and that the mother’s dying wish was for T to stay with SJH, are each features of this case. Those features make the case sensitive, difficult and distressing, but none of them, individually or together, affect the essential approach of the court which is, and is always, that T’s welfare is paramount. As Lord Hope said in Re B:

“In common with all other factors bearing on what is in the best interest of the child, it must be examined for its potential to fulfil that aim.”

The judge in such a case needs all the help he or she can get. One route apparently not considered at first instance was the possibility of separate representation of T by way of the appointment of a children’s guardian pursuant to FPR r16.4 (2). At first glance, the criteria set out in FPR PD16A Part 4 would appear to be met and it is hard to see how determining T’s future could be regarded as other than a case where there are unusually complex issues that necessitate separate representation of the child.(PD16A:Part 4.7.2(f).

It may be that the judge was of the view that the role of a children’s guardian would in effect be fulfilled by the local authority through their investigations and preparation of reports and that to appoint a children’s guardian would be unnecessary duplication. Unhappily that was not the case. The Appellant’s application was for a Special Guardianship order. S14A(8)or(9) CA 1989 requires the local authority to prepare a report upon receipt of notice of the making of such an application or upon the request of the court:

(8)

On receipt of such a notice, the local authority must investigate the matter and prepare a report for the court dealing with—

(a)the suitability of the applicant to be a special guardian;

(b)such matters (if any) as may be prescribed by the Secretary of State; and

(c)any other matter which the local authority consider to be relevant.

(9)The court may itself ask a local authority to conduct such an investigation and prepare such a report, and the local authority must do so.

s14A CA 1989 is supplemented by the Special Guardianship Regulations 2005; Regulation 21 and its accompanying schedule. The schedule sets out those matters that local authorities are required to include in the report (often referred to as a Regulation 21 report). It is not surprising that a court cannot make a Special Guardianship Order without a report (s14A(11) CA 1989 given that the object of a Special Guardianship order is to provide a lifelong permanent relationship between the carer and child whilst preserving the legal link with the birth family. it follows that the investigation carried out by a local authority pursuant to the regulation is of considerable importance as is apparent from the extensive factual detail required by the Schedule

The report prepared by Mr Brennan followed the basic structure set out in the schedule but was cursory in its analysis; for example there was no consideration of the effect on T, of the potential double loss of not only her mother but also her current carers; or of the impact upon T of coping with her own grief, in circumstances where the father had shown himself to be unable to set aside his hostility to the mother or to T’s current carers.

Further there is virtually no information about the father’s current relationship which is of only two years duration. The report says that the two teenage boys were spoken to, but there is no record of what they said or discussion as to how the family as a whole would accommodate T or, as to their views about a small child moving in with them. The judge commented that whilst the relationship between the father and his partner seems stable, there was no knowing whether it would last through T’s childhood. There is no mention of the potential emotional damage to T if she was to suffer the further disruption and loss that the breakdown in the father’s present relationship would occasion in circumstances, where the judge was relying heavily on JB’s role in T’s future care. Without a full investigation into the father’s household and the relationships with in it, whether by the local authority or a children’s guardian, the judge was not in a position to assess the risk of such a further disruption to T.

Even had SJH not being seeking a Special Guardianship Order, the potentially life long consequences for a young child of the death of her mother are so considerable that the court must have the benefit of a detailed investigation and analysis of the child’s circumstances, whether produced by a children’s guardian, Cafcass or a local authority if they are involved.

This was a difficult case. The court was faced with making a decision as to what arrangements could best be made to ameliorate the loss to T following the death of her mother. The judge listened conscientiously and carefully to extensive evidence and made findings about the parties involved. He was however denied critical assistance in two respects:

The father has today once again been in a position of having to represent himself. This case is yet another example of the consequences of treating private law children proceedings, (in the absence of allegations of domestic violence), as being essentially straightforward matters in which parents are expected to “sort themselves out” and to make appropriate arrangements between themselves to enable their children to spend time with each of them without the necessity for, or entitlement to, legal representation.

The challenges presented by this case are obvious and have been set out above; the difficulties have been demonstrated at every professional level in the case, from the reports being wholly unsuited to the complexity of the case to counsel being unaware of the legal issues thrown up. As a consequence, the judge was left having to deal with the case without the help he needed. If the complexities of the case proved too much for these skilled professionals, what hope was there for the father in trying to represent himself?

Lord Justice McFarlane recorded, when granting permission that the issues raised in the appeal were principally a matter of law and that the father was to be given “every assistance” to obtain legal advice and representation. Unhappily the father appears before the court today once again unrepresented, although supported by JB. To his credit, the father has produced a skeleton argument for the court; his oral argument was courteous and moderate but inevitably did not touch upon the legal principle at the heart of the appeal. The father’s skeleton argument, far from addressing the point of law raised by the appeal, sadly serves only to underscore his animosity towards both the dying woman and the couple who have provided a home for her and for T during the period of time when he had been absent from their lives.

The appeal is accordingly allowed and the matter will be remitted in the first instance to the Family Division Liaison Judge for the Western Circuit for case management directions including consideration as to future interim contact with the father and as to whether T should be separately represented.

I also agree.