ase No: B4/2012/2186 
Neutral Citation Number: [2012] EWCA Civ 1369
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHEFFIELD COUNTY COURT
(MR RECORDER OLDHAM)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 11th October 2012

Before:

LORD JUSTICE MUNBY
- - - - - - - - - - - - - - - - - - - - - - - -

In the matter of C (a child)

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

(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

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

Mr Stuart Leach (instructed by Cowlings) appeared on behalf of the Appellant maternal grandparents.

Ms Caroline Ford (instructed by Rotherham Metropolitan Borough Council) appeared on behalf of the First Respondent local authority.

The Second Respondent mother and Third Respondent child acting through his Guardian did not appear and were not represented.

- - - - - - - - - - - - - - - - - - - - -
Judgment

Lord Justice Munby:

1.	This is an application for permission to appeal out of time from a judgment and order made in Sheffield County Court by Mr Recorder Oldham on 2 July 2012.  The application to this court, it being common ground that an application for permission was made in the lower court, is by common consent out of time, a fact I will turn to in a moment.  

2.	The application came on initially before McFarlane LJ sitting as a single judge on 12 September 2012.  On that occasion the applicants appeared in person and both they and the Lord Justice were disadvantaged by the fact that there was no transcript available of the Recorder's judgment.  What the Lord Justice had was a note of the judgment prepared by the local authority's counsel.  It is no criticism of her that as McFarlane LJ explained in the short judgment he gave on that occasion ([2012] EWCA Civ 1220) at a crucial point in the judgment the note was less than perfect, just as it is no criticism of the applicants that the transcript had not at that stage been prepared.  In the circumstances McFarlane LJ, having expressed the view that although various things that were said about the family "are worrying", went on to make the observation, an observation with which I would tend to agree, "but they are not the most worrying that one ever sees".  In those circumstances the Lord Justice decided that what was required in justice, not merely for the applicants but also, as I would stress, for the baby with whom he like the Recorder was concerned, was that the application should be adjourned to come on again after the transcript had been obtained. 

3.	No doubt helpfully from the applicants' point of view, McFarlane LJ also makes certain observations about the need for legal aid which has had the happy consequence that their solicitors are back on the record.  They appear this morning by Mr Stuart Leach, who has come into the case at comparatively short notice, not having appeared before the Recorder.  The local authority helpfully has attended today and is represented before me by Ms Ford, who represented it before the Recorder.

4.	McFarlane LJ raised as a possible question, a question which he could not answer due to the absence of a transcript, the possibility that the Recorder had erred in law in failing adequately to address the fact that the order he made, being an order not merely for a full care order but also a placement order requiring the dispensing with the mother's consent, can be made as a matter of law only if that is "required" in the interests of the child's welfare.  I have the benefit of the transcript.  True it is that the Recorder does not use the word “required” in his judgment, although as Ms Ford points out it does appear on the face of the order which was made the same day.  But it seems to me, and Mr Leach did not really press the contrary argument with any particular enthusiasm, that the Recorder did as a matter of substance apply the right test.  He described the relocation of the child to the family as "simply not a possibility".  He said that "there is no real option other than" a care order and adoption.  He said a little later it would be "appropriate in all the circumstances" for the child to be adopted and used the same word when expressing himself satisfied of the care plan "is appropriate".  However, and it seems to me importantly, he said that for the reasons he had given, this "is the order that has to be made".  It seems to me, on a fair reading of the whole of that passage, that there is no realistic argument for suggesting that the Recorder erred in law.

5.	Indeed the central core of Mr Leach's arguments, reflecting the arguments which his clients had put forward in their grounds of appeal, is that this is a case where the Recorder was plainly wrong in striking the balance in the way he did and that on that basis there is at least an arguable ground of appeal.  

6.	The Recorder was concerned with a baby who at the time he gave judgment was seven months old.  The father of the baby is unknown even by the mother. The mother has learning and other disabilities and was, the Recorder found, simply not in a position to bring up her son.  That assessment of the realities of the situation was in large part common ground before the Recorder and in any event is not the subject of challenge today. 

7.	The real issue before the Recorder was whether in these circumstances, as the family was contending, the baby should be brought up by the maternal grandparents or whether, as the local authority supported by the guardian was contending, adoption was the only possible solution.  

8.	The grandparents have four children.  Two of those children suffer from various learning and other disabilities and have, as a result, had problematic lives, one of those two being the mother of the baby.  The other two children have no such difficulties and, as the Recorder recognised, had been brought up by the grandparents, their parents, in an entirely satisfactory way and such that they are now happy, successful adults.  

9.	The local authority's case at the end of the day was crucially founded upon an evaluation of a number of risk factors which were identified and analysed both by Dr Berry, who carried out a painstaking, detailed assessment of the grandparents as also the mother, and also by the family assessment team.  In essence the views of the assessment team and the views of Dr Berry were to very much the same effect.  

10.	The Recorder gave a careful and detailed judgment which enables us to understand his thought processes very clearly.  He was concerned both to determine whether the threshold was established and also, if it was, to decide outcome.  Many of the factors to which he gave careful attention in his judgment related both to threshold and to outcome.  He found the threshold established in terms of four (that is, paragraphs 1, 2, 3 and 5) of the original five grounds put forward, finding the other ground (paragraph 4) not established.  (1, 2, 3 and 5 are now set out in a fresh document, 5 being renumbered as 4.)  There is no challenge in this court to his findings on threshold.  

11.	Founding itself on the work of Dr Berry, the family assessment team and the work of other professionals, the local authority focussed on a number of specific risk factors which it identified and all of which were explored in the course of evidence, the Recorder having heard extensive oral evidence from Dr Berry and also from the grandparents.  In relation to some of Dr Berry's recordings of what she says the grandparents had told her, there was controversy, the grandparents saying that she had misrecorded what they had said.  In relation to those essentially factual disputes the Recorder found Dr Berry to be the more reliable witness.  

12.	The Recorder, starting on page 5 of the judgment and going through to the foot of page 6, identified the risk factors to which I have just referred.  He made clear that he took them in no particular order.  I will take them in the order in which he took them.  

13.	The first risk factor related to events in the past when it was said that the mother's uncle had misbehaved himself with her in a sexually inappropriate way.  The second risk factor related to certain sexual activities which the mother's youngest brother had apparently engaged in at school, he being one of the two children with learning disabilities.  The third risk factor related to the undisputed fact that the grandfather accepted a caution in 1984 and in 1985 was convicted, at a time when he was approximately 20 or 21 years old, of offences of unlawful sexual intercourse with a girl under the age of 16.  

14.	The fourth and final risk factor to which the Recorder makes specific reference related to a man called TD.  TD was the man who at an early stage in the proceedings had been thought to be the father of the baby.  DNA testing demonstrated, as the Recorder said to everybody's surprise, that he was not and could not be the father.  It then emerged that the unknown father of the baby is a man with whom apparently the mother had a fleeting and casual sexual encounter behind a public house.  In relation to TD the essence of the complaint was that he was somebody who preyed on young women having the kind of difficulties the mother has and that the grandparents had been insufficiently assiduous in protecting their daughter from him.  

15.	At the forefront of Mr Leach's argument is the submission that the Recorder gave wholly inadequate weight to the undoubted fact that the grandparents had successfully brought up the two of their children who do not have the difficulties which the mother and her youngest brother have.  There is no suggestion that the baby has any difficulties whether physical or otherwise of any sort, let alone difficulties of the kind unhappily shared by his mother and one of his uncles.  As the argument developed it became apparent that the essential focus of Mr Leach's argument is based upon the Recorder's analysis on page 18 of his judgment.  At the foot of page 17 the Recorder recorded how counsel had submitted that he should start by looking at the other two children as being the product of the parenting given to them by the grandparents: 

"They have turned out and I entirely accept to be well adjusted, sensible adults who have done well."

He then recorded the submission as being that they should be the models, "that here we have [the baby] who, as far as anybody can tell at the moment, does not have any difficulties, particular difficulties, and that in assessing [the grandparents’] ability to parent, one should look at [K1] and [K2] as the models which [the grandparents] aspire to”.

16.	So the argument was that one needed to focus in particular upon the success which the grandparents had seemingly made in bringing up two of their children.  It is perhaps relevant to interpolate at this point that although social services have as I understand it had involvement with this family since 2007, that involvement came at the time when even the youngest of the children had entered teenage years.  So this is a family where the grandparents have successfully brought up two children, and had done their best as they would say to bring up the two other children, for many years without local authority involvement.

17.	What follows in the judgment it seems to me is crucial.  The Recorder said: 

"Well, I understand that argument.  I do not think it is realistic. What we have to look at here is …"

and he then gave the names of the two children with learning disabilities.  He continued: 

"Both of them have difficulties."

And he then went on, in an entirely appropriate way, to describe what their difficulties are.  He said: 

"They have vulnerabilities..."

And he then went on to make the observation that the grandparents, "while they may have felt that they were being good parents have misunderstood or not appreciated some of the risks to which those two children in particular were being subjected”.  He then went on to observe that the baby "of course is vulnerable, he is a baby.  Like any baby he is vulnerable and he needs a particular level of care suitable to that vulnerability”.  He then deemed it important to: 

"recognise in terms of the purely practical aspects of parenting, changing nappies, feeding and so on that there is no reason to think [the grandparents] are not capable of doing that."

He then proceeded by saying: 

"What troubles me is that other areas of risk which inevitably would be involved in my view."

That is apparently a reference back to the risk factors which I have already listed.

18.	Now Mr Leach's argument really comes down to this.  First he says that the Recorder, having stated that the family's plans were not realistic, then answered the obvious question, why they are not realistic? by directing attention to the two children who have the learning and other difficulties, simply ignoring the fact that, as Mr Leach would have it, what one is concerned with here is not a baby with the difficulties they have but a baby who seemingly has no difficulties of any kind and for whom the more relevant comparator is, it might be thought and Mr Leach so asserts, the other two children.  In other words Mr Leach submits that the reason given by the Recorder for dismissing the family's plans as not realistic focussed exclusively upon the two children with difficulties which was in itself, he would say, no answer to the submission he was pressing, namely that one had to give very considerable weight to the grandparents' success in bringing up their other two children.

19.	Well, says Ms Ford, that is not in fact what the Recorder was doing because, she says, only a little later on he said in the passage I have already referred to that what troubled him were the other areas of risk.  That brings one to the second element in Mr Leach's complaint.  Let us look at what those areas of risk were.  I have already gone through them.  

20.	The first arose out of an uncle misbehaving himself with his niece, she having difficulties and being vulnerable.  As Mr Leach points out we are not concerned here with a girl, we are concerned with a boy and, more to the point perhaps, a boy who does not share the vulnerability of his mother.  The second risk factor, relating to the grandparents' youngest son, again relates to one of their children who had difficulties.  What is the significance of that, asked Mr Leach, how much weight can one really give that where one is concerned not with a vulnerable child with difficulties but with a perfectly typical baby?  The third element of risk, relating to the grandfather's own history: well, says Mr Leach, that was a very long time ago.  It is obviously relevant but can it really carry as much weight as the Recorder thought?

21.	The final factor related to TD: again, says Mr Leach, really if one thinks about it, this has very little if anything to do with the ability of these grandparents to bring up the baby, the issue there having been a predatory man taking advantage of a disadvantaged and vulnerable young woman.  

22.	So, Mr Leach would say, even if Ms Ford's reading of the judgment is correct it still does not save the day because, if one analyses the real weight to be attached to the risk factors which in the event the Recorder treated as determinative, (a) they cannot, so it is said, on any sensible basis counterbalance the essential argument that these are grandparents with an established track record in successfully bringing up children who do not have difficulties and are not vulnerable and in any event (b) there is nothing really to show that the Recorder saw the balance as involving a necessary comparison of all these different factors.

23.	Well, that is the argument and Mr Leach submits that it satisfies the test of arguability without which, of course, as he accepts, he cannot obtain permission.  

24.	I confess I have found this a difficult and troubling case.  When I first read the papers and first read the Recorder's judgment, it seemed to me that there was no sensibly arguable basis of challenge.  Mr Leach has persuaded me, in particular because of his helpful focus on the Recorder's analysis, starting on page 17 at line 22 going down to page 18, line 19, that it is at least arguable that the Recorder did indeed strike the balance plainly wrongly.  I use that as shorthand.  It seems to me, as appears from what I have already said, that there can be said to be two distinct bases of challenge here.  One is that in dismissing the argument based upon the grandparents' success in bringing up two of their children, by saying that the relevant thing to look at was their bringing up of the other two children, the Recorder simply fell into error in, as Mr Leach mentioned at one point in his submissions, failing to appreciate he was comparing apples and pears.  

25.	The second string to the argument, which of course is interlinked with the first, is that if one compares the weight of the argument properly to be attached, as Mr Leach would have it, to the grandparents' successful track record relating to two of the children, the Recorder was simply plainly wrong in taking the view that the risk factors could, either individually or together, come down against their claim.

26.	I am persuaded at the end of the day that there is here an arguable ground of appeal.  I understand that following an order made on 2 July 2012, the contact which previously had been taking place, fairly frequently and by all accounts successfully, was, as often happens in such cases, fairly rapidly run down and that the family had a final farewell visit in August.  There has not in fact been, as I understand it, any introduction of the baby to the prospective adoptive parents identified by the local authority, the local authority having in effect put that further development on hold pending the outcome of the present application.  The fact is that, apart from the mere passage of time, and I do not seek to minimise that, because any delay is disadvantageous, nothing has actually happened since the final farewell visit in August until today, unless it be, and we do not actually know, whether the delay has itself led to the prospective adopters no longer being potentially involved.  Any delay of this sort is of course most undesirable but it does not seem to me that there is going to be any insuperable detriment to the baby if this appeal proceeds, albeit it must proceed now with the utmost speed.

27.	I mentioned at the outset that the application is out of time.  I do not think in the circumstances it would be right to hold that against the grandparents or to refuse permission on that ground alone.  The fact is that they were, it would seem, given certain advice in the immediate aftermath of the judgment.  It is a fact that their application for permission to appeal was made to the Recorder.  Thereafter the grandparents acted in person.  They did not, as it seems to me, sit on their hands.  They did their best as lay people to pursue the appeal which they wished to pursue.  Their first port of call appears to have been the local court.  They then applied to this court.  Seemingly there were defects in the papers they initially lodged.  To cut a long story short, in the outcome the application was out of time.  In the circumstances it would not, I think, be just either for them or importantly to the baby if that delay was to be held against them and was to be a bar to the pursuit of an appeal which otherwise they have established is at the very least arguable.  Whatever the consequences may have been of the delay thus far, they are a fact which cannot be undone, although it does not appear that in fact there have been any significant adverse consequences.  If this appeal now comes on as a matter of extreme urgency, as it must, it does not seem to me that any further delay is likely to cause any prejudice to the baby.  

28.	In those circumstances I am persuaded – against, I have to say, my initial scepticism – that there is an arguable ground of appeal.  I must make clear however that all I have decided today is that there is an arguable ground of appeal justifying the grant of permission.  It will be for the full court to decide whether that appeal is successful.  The grandparents and the other members of the family who are present in court must appreciate that just because one judge takes the view that something is arguable does not mean that the argument will succeed on the day.  So what the grandparents have achieved today is successfully vaulting the essential first hurdle but it may be for all I know that they will fall at the final fence; the effect of my decision is that they survive to fight another day.  It will be for the judges on the occasion when the appeal is heard to decide whether the appeal is successful or not.

Order: Application granted