NO:  B1/2001/0397

Neutral Citation Number: [2001] EWCA Civ 904
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SUNDERLAND COUNTY COURT
(HIS HONOUR JUDGE CARR)
                                      
                                  Royal Courts of Justice  
                                  Strand    
                                  London WC2
 
                             Tuesday, 12th June 2001

B e f o r e :

LORD JUSTICE THORPE

and

LORD JUSTICE MANTELL

- - - - - - - - - - - - - - - - -

IN THE MATTER OF RE

D (a Child)

- - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0171‑421 4040 Fax No: 0171‑831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - -

MR HOROWITZ QC and MR I L KENNERLEY (instructed by Christopher GD Bradley, Town Hall & Civic Offices, Westoe Road, Southshields NE3 32RL) appeared on behalf of the Applicant
MISS PAMELA SCRIVEN QC and MR K ARMSTRONG (instructed by McArdles 26 Frederick St, Sunderland, Tyne & Wear SR1 lLT) appeared on behalf of Respondent Paternal Grandparents.
MR T M FINCH, (instructed by Patterson Glenton & Stracey, Southfields) appeared on behalf of the First and Second Respondents

- - - - - - - - - - - - - - - - -
J U D G M E N T
Tuesday, 12th June 2001
1.	LORD JUSTICE THORPE: This is an appeal brought by the local authority, the Sunderland Borough Council, from a judgment and order of His Honour Judge Carr sitting in the Sunderland County Court on 23rd January 2001.
2.	The principal respondents to the appeal are the grandparents of the only child whose order is challenged by the local authority. That is the youngest child of the family, E. The parents are, of course, parties to the appeal and they have appeared today by Mr Finch, but he has not had to bear the burden of responding to the appeal since Miss Scriven QC on behalf of the grandparents has that primary responsibility. The guardian ad litem was represented by Miss Moulder at the Court below but she has responsibly decided not to burden public funds with the cost of her attendance but has relied on a skeleton argument supporting the local authority's appeal.
3.	For the purposes of this judgment it is unnecessary to go into many of the areas of fact and history which were thoroughly explored at a hearing that lasted some 21 days and which are summarised in an ex tempore judgment, which excluding exchanges after judgment, runs to some 44 pages. The opportunity to deal briefly with this appeal rests on the judge's conclusion that the local authority had plainly made good their case for care orders in respect of the three eldest children. The difficulty for the judge surrounded the local authority's plans for the future of the youngest of the four girls, E, born on 4th August 1996. The local authority in their care plan sought for E the same future as for her older sisters, namely that they should be permanently separated from the family and made the subject of adoptive placements. The evidence adduced by the local authority showed that some of the older girls had suffered quite gross physical abuse and some of them equally gross sexual abuse, and the judge was in no doubt at all that it would be quite impossible to devise any sort of protection for them without a clear separation from the birth family. The case of E he considered to be different. He said in the very first paragraph of his judgment that for her he intended a residence order in favour of the paternal grandparents with a supervision order to the local authority.
4.	The dysfunction within the family did not emerge until July 1999, and on and after 23rd July E was accommodated first with a foster family called R. There she did not thrive but indeed demonstrated quite severe disturbance not only soiling and smearing but also on two occasions showing quite extreme sexualisation, particularly given her young age. So the case for the local authority rested on the fact that she had plainly suffered some degree of sexual abuse during her years within the family, and there were questions for the judge to decide as to whether or not she had been directly abused by either a member of her parental family, alternatively, as was mooted, by her grandmother. The medical evidence lent against a finding of direct sexual abuse, and the judge reached a reasonably clear conclusion that she had not been directly sexually abused, and particularly that the suggestion of direct sexual abuse by the grandmother had not been made out. As my Lord has pointed out during the course of argument, he expressed himself in negative language in exonerating the grandmother. But on a fair reading of the judgment in its entirety, I do not take the terms of his findings to indicate any residual doubts. I think it is probably fortuitous that he did not express himself more positively in that regard.
5.	The local authority were refused permission by the judge but they were granted a stay to enable E to remain with the family to which she had been removed after the failure of the R placement. With this second family, the Ws she was progressing well and, accordingly, it was simple to maintain a protected status quo in which she has remained with the Ws and continued to see her grandparents on a regular basis.
6.	The application by the local authority to this Court for permission was adjourned to an oral hearing. The oral hearing came before the Court on 29th March when, in a judgment given by Hale LJ, permission was granted to the local authority. She also directed a supplemental report from the guardian ad litem which became available on 5th June.
7.	It is unnecessary to say any more about proceedings in this Court prior to today's hearing when we have heard full argument. The points that have been advanced in support and in response are relatively easily summarised, and they are simpler than is the task of deciding outcome since, plainly, this is a finally balanced appeal and there are many worrying features of the arrangements that had been put in place in the Court below. The judge at the end of his judgment not only made the order which he had announced in his opening paragraph but then, as it seems by way of afterthought prompted by a question from counsel as to contact arrangements in respect of one of the older girls, said at page 45, “I do intend to have a review of the Residence Order in approximately four months time”. Indeed, the order of the Court as drawn provides for a review before Judge Carr on a date to be fixed after 31st July, 30 minutes allowed. So in the end we have this combination of a residence order to the grandparents, fortified by a supervision order by the local authority, and then, as it were, qualified by a provision for review after the passage of six months.
8.	Mr Horowitz QC has made a number of criticisms of the judge which he helpfully and succinctly summarised at the outset of his oral argument. I will take his points in turn. He says, and it cannot be gainsaid, that E is a child who has been sexually abused in the sense that she has been exposed to sexual abuse in the family. She has also been exposed to the experience of sex between adults. She has been exposed to the observation of sex between an adult abuser and elder siblings. That has had a very profound effect on her development as is demonstrated by her behaviour not only when in the care of the Rs but more recently when in the care of the Ws, as emerges from the guardian's report of 5th June. So says Mr Horowitz, and there can be no gainsaying this proposition, E's future development must be most closely and sensitively monitored.
9.	In relation to the grandparents, and this is his third submission and it is really in my opinion his most forceful submission, he says that whilst the judge may have dismissed the suggestions of abuse by the grandmother still there is an anxiety arising out of her failure to protect in the past which raises a large question as to her capacity to protect in the future. From there Mr Horowitz moves to a second submission which at first blush is equally powerful, namely that the evidence disclosed an ingrained pattern of sexual dysfunction in the family through the generations. There was evidence from the grandmother's own account of her first marriage that she was herself the victim of sexual violence at the hands of the paternal grandfather. In addition, there was direct evidence from E's father that he had himself been grossly sexually abused by his maternal uncle and further that he had been quite unable to reveal this to his own mother. All these considerations, says Mr Horowitz, were not only insufficiently reflected in judgment but were simply dismissed by the judge. He made no reference at all to E's father's experience of sexual abuse in childhood, and as to the grandmother's own experience of sexual violence in the marriage the judge said, perhaps surprisingly, “any suggestion of sexual violence I find not relevant”, that being a direct quote from line two at page 2 of his judgment.
10.	Then, says Mr Horowitz, although the judge had the huge advantage of weighing the witnesses, his findings were not findings of fact but findings of a capacity to cope in the future, and in that area the advantage given to a judge is less sacrosanct, particularly where it ran counter to the theme of expert evaluation as presented by the Sexual Behaviour Unit and by the guardian ad litem. I leave out of that combination the Laygate Family Centre since the judge explained his reasons for laying little store on their recommendation, and Mr Horowitz has accepted that the judge's analysis of that decision is not open to challenge.
11.	Moving to Mr Horowitz's next submission, he says that this is simply a judicial solution that cannot work ‑‑ it cannot work practically; the proximity between the grandparents and the parents is but a twenty‑minute walk. E's school would be midway point between the two homes. The two generations are closely intertwined. The younger generation has always been heavily dependent on the older generation, and any protestations of severance between the generations is put in doubt by a number of observations, slight in themselves but cumulatively giving rise to suspicion that they are either not yet apart or, if they are, that they will in the fullness of time come back together.
12.	On a legal plane Mr Horowitz says that the scheme is pretty well unworkable. The residence order provides inevitably for a sharing of parental responsibility, and that, in all the circumstances, is simply impractical. He also criticises the provision for a review. There is no ancillary provision for the filing of any evidence. If the judge's confidence in the grandparents proves at the end of a six‑month trial to have been misplaced, the judge would have precious little power and he would not have a guardian to help him to arrive at a conclusion.
13.	Mr Horowitz's final submission is that the judge really completely misunderstood the history when he concluded that the grandparents' past performance as grandparents amounted to proof of capacity which he expressed as “proof of the pudding lies in the eating”. Properly evaluated, says Mr Horowitz, the judge would have seen that the grandparents, far from serving their grandchildren well had in reality failed their grandchildren by failing to protect them from abuse which was pretty patent either in the form of bruising and lesions or in the form of very disturbed behaviour which might easily have been diagnosed as the product of very poor parenting. Those are the powerful submissions advanced by the local authority.
14.	Miss Scriven in response accepts that there has been sexual abuse of E in the sense advanced by Mr Horowitz, but she says that we must look at E in the round, and apart from the disturbance demonstrated when in the care of foster parents, all the professional evaluations show her to be a normal charming little girl. As to her need for close and sensitive management, that is readily conceded by Miss Scriven but, she says, it is precisely that that the grandparents can and will provide on the judge's findings. That really brings Miss Scriven to her strongest submission that here is a very experienced circuit judge who has seen these grandparents over twenty‑one days in his Court, the grandmother two days in the witness box, the step‑grandfather one day in the witness box. If he has from that experience reached the firm conclusion that they had the capacity to provide for E's special needs, then it is not open to this Court on a bare appellate review and on a reading of the documents to reach any other conclusion.
15.	She says in relation to Mr Horowitz's next submission that if the judge did not refer to an established family pattern of sexual dysfunction, that is explicable and excusable by understanding that none of the professionals laid any stress on that aspect. As to the suggestion that this is an impractical arrangement, Miss Scriven stresses the judge's finding that the grandparents had separated themselves from the younger generation and the judge was perfectly satisfied of their capacity to hold out against any reunion. She rejects the suggestion that the judge's arrangement was legally impractical. She stresses that the supervision order could be extended to a maximum life of thirty‑six months, and she points out that the purposes of the review was not to test the judge's confidence in the grandparents so much as the local authority's capacity to put in place necessary supportive services.
16.	Finally she says that on the history the grandparents were fully entitled to the proof of the pudding accolade since they had provided respite care for two of the older children at regular intervals.
17.	So that summary of the rival submissions brings me to the point of expressing a conclusion. I think that the outcome of this appeal is very finely balanced. I think Mr Horowitz makes some very powerful points. I think that there must be considerable anxieties for the future of E as drawn by Judge Carr. I think that Mr Horowitz is entitled to submit that the judge has underestimated the extent to which E is disturbed, particularly in her sexuality and, accordingly, that he has underestimated her special needs and to that extent has underestimated the burden that the grandparents would have to bear. Of course if he has underestimated that burden, it undermines his conclusion as to their capacity to cope.
18.	I also have some misgivings as to whether the judge has sufficiently allowed for the repetitive pattern of sexual dysfunction through the generations. Even if it was a factor not stressed by the experts it was certainly there to be perceived by a judge of experience.
19.	I also think that the solution which he has has devised is one that is far from perfect. The imposition of a supervision order shows the degree to which he regarded the grandparents as being either fallible or in need of continuing support. The provisional review seems quite inappropriate at the conclusion of the public law case. It seems to me the sort of provision that has infinitely more utility in private law proceedings. It was, in effect, a care plan for E that the judge could not swallow and digest but he did not put to Mr Kennerley that that was his root problem and invite the local authority to reconsider their formulation. However, Mr Kennerley has very helpfully informed this Court that he had taken specific instructions in anticipation of that possible development and he had received clear instructions that if that was the judicial reaction he was to stand firm on the plan as filed.
20.	We have put the same proposition to Mr Horowitz in this Court and he has cogently explained why it is that the local authority remain constant in rejecting any judicial pressure to re‑cast the care plan towards rehabilitation. I suppose in the end I have to express my misgivings about the judge's order to the extent of saying that it is not an order that I would have made had I been the trial judge in the Sunderland County Court. But, of course, that does not in any way lead to the striking down of the judge's order. We have to come to consider the fundamental point advanced by Miss Scriven that this judge had an unrivalled opportunity of measuring the grandparents, both individually and as a couple working in partnership; that he reached the clear conclusion that they had an enough to offer this little girl to ensure her the benefit of a future within her biological family with continuing contact with her sisters and possibly even with her abusive parents.
21.	I have found the balance between these two weighty submissions quite hard to strike. I have a residual anxiety as to whether the judge's order is sufficiently protective for this highly vulnerable child, and in the end the protection of children is one of the primary purposes of the family justice system. On the other hand, it is important that this Court should recognise the very important function of the trial judge to make these vital assessments of individuals. If a judge has invested over four weeks of Court time to gauging adult capacity, adult dangerousness, and has reached a firm conclusion, absent error or misdirection it is extremely important that this Court should not feel that it has some sort of superior judgment.
22.	In the end I have reached the hesitant conclusion that it would be unprincipled to overturn an order, even an order which gives rise to real anxiety for future welfare. The judge has seen these grandparents and he has reached a conclusion which could hardly have been much more plainly expressed. The criticisms that are mounted of the judgment are certainly substantial but do not reveal in my opinion a sufficient misdirection to justify this Court in intervening.
23.	I have also been worried by the additional evidence but, here again, it is important that this Court should be cautious. Although it is a Court directed report, it contains a lot of material which is highly contentious, and it would not be fair to the respondents to allow any of the material within the report that is controversial to be brought into account in evaluating whether or not the judge has arrived at a conclusion that is plainly wrong. This additional material will have to be brought into account at the future review which the judge has directed. Obviously the timetable for that review will have to be revised. The inception of the supervision order will run from the conclusion of this appeal and the review that the judge has directed will run from a date not at the end of July but at the end of December next.
24.	Apart from those very minor consequential reservations, I have reached the conclusion that as a matter of principle this order must stand.
25.	LORD JUSTICE MANTELL: I would also agree with the reasons given by my Lord.
(Appeal dismissed; public funding assessment of costs)