BAILII Citation Number: [2012] EW Misc 31 (CC)
IN THE FAMILY COURT 
AT CHELMSFORD COUNTY COURT
New London Road
Chelmsford
15th November 2012

Before
HIS HONOUR JUDGE NEWTON
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Between:

Mr and Mrs P (The Appellants)-V-Essex County Council (The Respondents)
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MR and Mrs P appeared in person
MISS KESSLER appeared on behalf of P‘ s mother appeared on behalf of Essex County Council
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JUDGMENT
JUDGE NEWTON: The court is concerned with P, born on the 14th of
November 2011. Her welfare is my paramount consideration.

She is the daughter of A and B. In February of this year, the local authority issued care proceedings as a result of the care being provided to her by her mother.

The first Interim Care Order was granted on the 6th of March of this year, and has been renewed ever since. As early as the 13th of March, so within a week of proceedings, the maternal grandparents (Mr and Mrs P) applied to the court to become a party to the proceedings they being concerned and interested in their granddaughter the application was granted and they became a party or reasons which are, unclear to me, on the 20th of August 2012 an order was made by the Family Proceedings Court where this case has been dealt with ,in the following terms  in the following terms: “that upon the maternal grandparents not attending court but indicating to their solicitor their intention not to proceed with their application, ‘Leave to the maternal grandparents  to withdraw their application for leave to apply for a Special Guardianship Order.’ It is  a curious order, because  as it now appears , what happened was that their usual solicitor was, away. 

Somebody else from that firm of solicitors attended. The grandparents were not present. They had certainly given no instructions, and indeed the withdrawal was against, as I am told, their express instructions. Indeed, Miss Kessler (who appears for the mother today) indicates that she was very anxious about that, and indeed had caused some enquiries to be made when it came to her notice because, aware of their interest and involvement in P they have had regular contact, it therefore --, appeared to be surprising and extraordinary thing to have occurred, particularly because they continued to maintain their interest in P, and particularly because there was nothing to suggest even in the viability assessment (carried out by Heloise Dove of the 19th of July) that that was indeed their position. They complained to their solicitors, and indeed clearly had to be represented by somebody else in the circumstances.

During the course of the proceedings, a viability assessment had been carried out by the local authority, that viability assessment raises a number of anxieties about Mr and Mrs P. Then what is called a ‘viability assessment’ was carried out by Heloise Dove, an extremely experienced independent social worker, it is dated the 19th of July. It is rather more than a viability assessment, in that Mrs Dove clearly spent some considerable time discussing the issues both with the relevant parties and also within the report.

The report is not supportive of Mr and Mrs P’s application whether it be a Guardianship Order, or a Residence Order, or any other type of order and the report sets out her various  professional observations and concerns.

What is extremely curious to my mind, and very regrettable, is that there were then two applications before the court this time yet another differently constituted bench on the 15th of October. The situation on that occasion was that the mother was making an application for a S.38.6  Order -- I am not concerned with that but in relation to Mr. and Mrs. P, they were making application for permission to apply for a Residence Order in relation to their granddaughter P. The record shows that, on behalf of the maternal grandparents, it was submitted that the report by Heloise Dove did not properly demonstrate their ability to care for children, and was only a snapshot of the family circumstances in June 2012.
It was submitted that     is excelling in school and this was a family of high achievers, and there should be no doubt that this family could provide for P.
That application then (as now) was supported by the mother, whose position then was, firstly, that she wished to care for her daughter and, secondly, if that wasn’t approved by the court, that she should be cared for by the maternal grandparents.

Then the record reads as follows: ‘The local authority opposes this application, relying on the report of Heloise Dove, which indicates that the family’s competing needs are such that P‘s needs cannot be prioritised and met. The local authority’s plan is for P to be in a permanent secure placement away from the birth family at this stage.’ The local authority went further, and invited the court to discharge the maternal grandparents as parties to the proceedings if their application was not granted.

The next paragraph reads as follows: ‘The guardian also opposes the application by the maternal grandparents, relying on the position statement dated the 9th of October 2012. It was submitted that there was a very thorough report indicating that the maternal grandparents would be unable to meet P‘s needs, given their busy lifestyle and the number of children already in their care. It was highlighted that the maternal grandparents had previously within these proceedings withdrawn an application for leave to apply for special guardianship (the unusual circumstances of which I have already referred to). The guardian supported the local authority’s suggestion that the maternal grandparents should be discharged from the proceedings if not successful with this application’.

The decision is marked as follows: ‘We have been reminded of the statutory
Criteria, we need to consider, as provided for in 10(9) of the Children Act. The application is for residence. As the local authority and the guardian have highlighted, the maternal grandparents will face difficulties due to the report prepared by Heloise Dove. Her level of experience has expressly been indicated to us in the guardian position statement, and her, thorough the report, suggests ultimately that P‘s needs cannot be met by the maternal grandparents.

‘We have heard the submissions on behalf of the maternal grandparents today in respect of countering the concerns, but feel that the application remains significantly impaired by the report. It is clear that the maternal grandparents have a close connection to P as her grandmother and step-grandfather respectively and they continue to enjoy regular contact with P. There will be disruption caused to P whatever the eventual decision in these proceedings, as a long-term placement is anticipated and she is currently in foster care. At this stage P is less than a year old, and will accommodate change without long-term detriment. It is unclear what harm would be caused in either situation. ‘The local authority care plan is for placement leading to adoption and a phased reduction of direct contact and providing for indirect contact in the future to maintain family connections.

‘We note that P is young enough for there to be a strong prospect of her being adopted successfully if a Placement Order were to be made. Mother’s primary wishes are for P to be returned to her care. If that is not successful, she supports the maternal grandparents’ application for residence and for P to remain in the family.

‘We note the very thorough and full report undertaken by an independent social worker, Heloise Dove (referred to above), and that five face-to-face contacts took place in the preparation of the report. It is clear that the report was carefully considered and a great deal of information was gathered from within the family and sources outside the family unit, highlighting the concerns of other professionals about this family’s functioning and the welfare of the children. ‘She has detailed the family dynamics and the activities and lifestyle of the family unit. She has also considered the interaction between the siblings and between siblings and their parents. The report outlines the chaotic and hectic living arrangements and the current physical limitations that the house presents. We do not consider this represents the snapshot that was suggested on behalf of the maternal grandparents.

‘We are concerned by the apparent reluctance of the maternal grandparents to engage fully with the professionals, including Social Services and educational establishments. We share the guardian’s concerns about this application, and, for all the reasons above, are unable to grant permission to apply for residence of the maternal grandparents.

‘there is effectively no further role for the maternal grandparents to take within these proceedings, we also discharge their party status’. I confess that, on reading those factual reasons, this court is dismayed by what occurred. It seems to me manifestly unfair that the application should have been dealt with in that way, it prevented the grandparents from even putting their case at the full hearing. It was manifestly unjust, not just to the grandparents but to P and could in no circumstances be thought to be ECHR compliant.
I am perfectly aware that the court, in applying section 10(9), has to look at the criteria, one of which is the local authority’s plans for the child concerned. But here we are dealing with interested and committed grandparents, and the law could not be clearer. Regrettably none of the case law seems to have been brought to the justices’ attention as it should have been. It is overwhelmingly obvious that in circumstances where grandparents wish to argue their interest in their grandchild before the court, the court should welcome that opportunity of hearing the grandparents’ contribution and case.
Of course it is obvious (as the Justices record) and as I have mentioned to Mr. and Mrs. P that both the viability assessment but, more particularly, the assessment by Heloise Dove, setting out the anxieties and concerns that she has, do raise a significant difficulty for them, but that does not mean we yet reached the stage where just because there is a hurdle that has to be overcome, that somebody is denied a fair and oral hearing. That is particularly so when the justices, knew of the final hearing which was listed to occur on the 26th of October just 10 days later and knew that Heloise Dove was to give evidence in that hearing in any event. So one wonders why it was that the grandparents were not given permission to make an application, or at least be heard. All the evidence could and should have been heard together, quite properly, and therefore the matter could have been resolved without the need for further hearings and further delays. I strongly disagree and disapprove of any suggestion that the hearing on the 15th of October was procedurally fair. In my judgment, it was procedurally unfair. It did not allow any of the parties’ rights the child, the mother’s or the grandparents under Article 6 to be properly examined. It would have been had the grandparents being given an opportunity to present their case and to cross-examine the witnesses, although it is difficult, for legal reasons, to cross-examine your own witness, but that doesn’t prevent the witness being taken through the evidence that was available.

It seems to me, additionally, highly regrettable, particularly because I am told that at no time was the guardian’s position informed by the grandparents having previously withdrawn their application for special guardianship which I am told they (the grandparents) had discussed with her as to the very unfortunate circumstances where, without their express instructions, they were given permission to withdraw. So I am doubly anxious that the court appears to have relied on a submission that was not made.

I am deeply troubled about what occurred. I am concerned that it has been necessary for this matter to be dealt with in the way that it has.  It is yet another example of the importance of judicial continuity.

As an aside, I should say that on the day that the justices started the hearing (the 26th of October) a letter was received by the family proceedings court from a local MP, copying a letter he had written to the Prime Minister in the strongest terms. I strongly deprecate such conduct. It appears to be a clear political attempt to interfere with the judicial process. The justices proceeded to hear the case as I think they should have done in the circumstances but it is a matter which should be taken further, because at that time the case was still subject to judicial enquiry, whatever the circumstances, it should not have occurred in the way that it did. I do not criticise Mr. and Mrs. P they do not know the niceties of the law but an experienced Member of Parliament should, it shouldn’t have happened.

Without any hesitation, I give Mr. and Mrs. P permission to appeal. It seems to me a matter which ought to have been examined by the court. I am anxious about the state of their representation. Mr and Mrs P clearly would be assisted by representation. They would be entitled to apply for public funding.  I am told by Miss Kessler that the Pro Bono Unit would be able to undertake their case. Either way, they require representation.

There are issues which are not straightforward and need to be heard by the court. I make it clear to Mr. and Mrs. P that, in giving them permission, I am not giving any indication as to what might ultimately happen, and they do have a significant hurdle to overcome.

I must inevitably therefore quash the decision also made on the 26th of October since it was fatally flawed by the decisions made on 15th October, the appeal is allowed. I shall list the matter for final hearing in relation to all of the applications as soon as possible.