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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> D (A Child) [2005] EWCA Civ 1716 (08 December 2005) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2005/1716.html Cite as: [2005] EWCA Civ 1716

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MILTON KEYNES COUNTY COURT
(MR RECORDER CRICHTON)

		Royal Courts of Justice Strand London, WC2A 2LL
		8 December 2005

1. LORD JUSTICE WILSON: Mrs T, the paternal grandmother of M, who was born on 16 February 2002 and so is now aged 3, applies for permission to appeal against an order made by Mr Recorder Crichton, sitting in the Milton Keynes County Court on 17 February 2005. The order was made in care proceedings brought in relation to M by Milton Keynes Council. The first respondent to the proceedings was M's mother, a woman who sadly suffers substantial intellectual and other challenges and whose presence at the hearing, in terms both of herself and of the Official Solicitor, her guardian ad litem, was dispensed with. The second respondent was M's father. The third respondent was Mrs T who, although today she appears in person, was represented at that hearing. The fourth respondent was M himself, by his guardian ad litem, Mrs Arnold. On 17 February 2005, which was the third day of his hearing of the applications, the recorder dismissed an application by Mrs T for an order that the interim residence of M be granted to her and, instead, directed that the interim care orders which had been made in relation to him should for the time being continue.
2. It is the recorder's decision not to allow M to reside with her at any rate on an interim basis which Mrs T would wish to challenge in this court.
3. It is immediately apparent that almost ten months have elapsed between the date of the order and the date of this hearing. The copy of the appellant's notice filed by Mrs T in the papers before me suggests that it was filed only on 15 August 2005. But in the body of the notice Mrs T stated that a notice had had been lodged in March 2005 in this court and that the court had mislaid it. This morning I have asked Mrs T to show me evidence that the notice was lodged in March but unfortunately she did not bring her documents to court; she was more concerned - understandably so - to be here in time herself. Wherever the fault lies, and whether or not Mrs T is substantially out of time for her proposed appeal, the resultant misfortune is obvious. On 14 June 2005 the recorder conducted a further hearing and made a final care order in relation to M in favour of the local authority upon a plan that he should be placed for adoption. On the same occasion he dismissed Mrs T's application for a defined order for contact with M and left the issue of her contact with him in the discretion of the local authority. Today Mrs T tells me that, by a subsequent order, M has been declared free for adoption; that the local authority are actively searching for a placement; and that in the interim he remains in foster care.
4. It seems that for about the first two years of his life M was cared for by his mother and father. It is agreed that, through no fault of their own, both of them suffer such inadequacies that M's care was seriously neglected and became quite simply unacceptable, notwithstanding the assistance that Mrs T gave to the parents during that period. Just before M was taken into care in April 2004, the parents separated. From April 2004 until 22 October 2004 M lived with short-term foster parents under interim care orders made in the proceedings. It soon became apparent that neither the mother nor the father was a candidate for his future care. However, properly aware of the need to research all possible family placements before favouring a non-family placement for him, the local authority investigated the practicability of placing M with Mrs T. Mrs T is married to Mr W and lives with him and their daughter K, aged 15 or perhaps now 16, in Milton Keynes. In the light of the grave criticisms which Mrs T now makes of the local authority - and in that regard she has just told me that the social services department of this local authority have been gravely criticised in the press in relation to other matters - it is important to record that in the summer of 2004 their assessment of Mrs T's home was positive and they were proposing to move M into it. In that regard they were supported by a psychological assessment of all parties which had been carried out by Mr Flatman, a chartered psychologist, who was very impressed with Mrs T's love for M and with her apparent conquest of problems in her earlier years. He was also impressed by the quality of the relationship between Mrs T and Mr W but, by a supplementary report, expressed the view that Mrs T could care for M even in the absence of Mr W.
5. There was a substantial hearing fixed to take place on 19 October 2004. Outside the courtroom on that day there were extensive discussions in relation to the local authority's proposal to place M with Mrs T. In particular the guardian had substantial reservations about it. Mrs T contends that the guardian was biased against her from the outset and had always closed her mind to any solution for M other than adoption. In the event, however, the guardian went along with the proposal, also accepted by the circuit judge, for M to be placed with Mrs T under further interim care orders.
6. Thus it was that on 22 October 2004 M moved into the home of Mrs T. In December 2004, however, both the local authority and the guardian became concerned that the placement of M in Mrs T's home was not working as well as had been hoped, or indeed well enough. This Mrs T substantially disputes. The local authority learnt that Mr W had obtained his own accommodation and was partly sleeping there. It was to be the evidence of Mrs T and Mr W before the recorder that Mr W had a bad back (this the recorder accepted), found sleep difficult and disturbed Mrs T at night and that it was only for that reason (this the recorder did not entirely accept) that on occasions he slept in his separate flat. But the local authority were taken aback to discover that he had acquired the tenancy of the flat in June 2004 and that, at the time of his joint assessment with Mrs T, no mention had been made of his independent accommodation. Concerns were therefore raised that the relationship between Mrs T and Mr W was not firm. There were also concerns about the allegedly hostile reaction of K to the arrival of M in the home. K was presenting significant problems in the home, although there was an issue between Mrs T and the professionals at the hearing in February 2005 as to whether her problems went any further than natural adolescent rebellion. It is common ground that at least on one occasion Mrs T had had to call the police to help to find her. The judge also found that K had at one point been excluded from school. He also found that K had referred to M as a "little bastard" and a "little git", although in her proposed appeal Mrs T would wish to argue that in that regard the judge fell into error and that K had there been referring to her older half-brother, namely the father.
7. There is no doubt that M has been substantially damaged by his two first years of life when he was so neglected in the home of his parents and no doubt that his development has been significantly delayed. The recorder found that his speech was grossly delayed in that, while at his age he should have had the command of up to 200 words, he had the command of only about a dozen, including, so the recorder found, swear words picked up after he had moved into Mrs T's home. The recorder found that, although he was 3 years old, M was functioning only as a 15-month old child; was still in nappies; was prone to tantrums, to screeching, and to night terrors; and was in need of consistent care, with firm boundaries, of much higher quality than would have been good enough for an average child. The concerns in December 2004 and January 2005 were that he was not receiving it. When on 15 December the guardian visited Mrs T's home, she found M screaming and demanding food and she considered that, in response to Mrs T's reactive distress, his behaviour seemed to escalate. There were also concerns that Mrs T was not willing or able to cooperate properly with the local authority and in particular had a bad relationship with Miss Upton, the allocated worker.
8. On 17 January 2005 the local authority decided to remove M from Mrs T's home. They did so on 19 January and placed him back with his former foster carers. In removing him precipitately they breached an agreement, reached and reduced to writing outside court in October 2004, to convene a meeting with Mrs T and her lawyers before doing so.
9. Such was the background to Mrs T's attempt in February 2005 to secure the restoration of M into her home under an interim residence order. The local authority opposed her proposal. The father of M, ie her own son, notwithstanding the awkwardness of his situation, opposed her proposal. And the guardian firmly opposed her proposal. Even Mr W, though entirely loyal to Mrs T, wondered aloud during his oral evidence whether their hearts had ruled their heads in having offered to care for M.
10. In a long and careful judgment the recorder expressed considerable sympathy for Mrs T. He acknowledged her commitment to M and the fact that she had done her best for him during the three months for which she had sought to care for him. He was somewhat critical of the actions of the local authority, in particular the breach of the agreement made in October. His conclusion, however, was that, particularly in the light of M's need for especially good parenting, of the problems which had emerged in December and January, of the doubt over the quality of the relationship between Mrs T and Mr W and the tranquillity or otherwise of their home and of K's negative reaction to the arrival of M, Mrs T's home was no longer an acceptable home for him.
11. Although she appears today in person, I suspect that Mrs T has had legal assistance in drafting the excellent statements and written arguments placed before me today. She argues that M's right to respect for his life with his biological family under Article 8 of the Convention of 1950, and indeed her own right thereunder were infringed by the recorder's order. That is not arguable. In his judgment he observed that the courts would always wish a child to remain with his extended family if possible. He specifically referred to M's rights under Article 8. He concluded that his refusal again to allow M to live with Mrs T was a proportionate response to the circumstances.
12. Mrs T would also complain that Mr Flatman did not give oral evidence and that the recorder refused an adjournment in order to enable him to attend. In doing so the recorder had in mind that an adjournment would cause further delay of a number of months before the court could make a definitive decision upon Mrs T's application. It is clear that he had Mr Flatman's two reports well in mind; and it seems to me to be important that after October 2004 Mr Flatman had apparently not been asked to make a further report referable to the concerns which had thereafter arisen. So his evidence was significantly out of date.
13. Mrs T makes other complaints but in particular she challenges the recorder's factual findings in numerous respects. Most of them are minor challenges but the bigger point is, as I have endeavoured to explain to Mrs T this morning, that this court cannot conduct a rehearing of the evidence given to the recorder and, unless there is clear evidence of error, it has to work from his findings of fact.
14. Like the recorder, I have very considerable sympathy for Mrs T. It is clear both from what she has said and from how she has looked in court today that she feels desperate heartbreak at the loss of M; and in one sense I so much admire that, by seeking to take this case right up to the Court of Appeal, she is still striving to secure his restoration to her. But, in cold legal terms, her proposed appeal is not arguable and, quite apart from the problems generated by the long delay, I must refuse her permission to appeal.
(Application refused; no order for costs).