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Family Law

The leading authority on all aspects of family law

21 APR 2015

Re S [2015] EWCA Civ 325

Re S [2015] EWCA Civ 325
(Court of Appeal, Moore-Bick, McFarlane, Vos LJJ, 26February 2015)

[The judicially approved judgment and accompanying headnote has now published in Family Law Reports [2016] 1 FLR 109]


Public law children – Appeal – Paternal grandmother ruledout as a special guardian – Whether the judge had failed to conduct a Re B-Sanalysis – Whether the judge had been able to rule out the grandmother as a‘realistic’ option

The grandmother’s appeal from a decision dismissing herapplication for a special guardianship order was allowed.

In care proceedings in relation to two young children thepaternal grandmother put herself forward as a potential long-term carer for theolder child who was 2 years old. She had played a significant role in his lifeand she had received two positive assessments by the local authority.

At the issues resolution hearing the guardian voiced her concernsabout the approach adopted by the local authority in assessing the grandmother.The court, therefore, directed a further assessment by an independent socialworker. The result of that assessment was negative and thereafter the localauthority recommended a plan of adoption for the child.

At the hearing the paternal grandmother sought a specialguardianship order in respect of the older child. Her application wasdismissed. It fell to be determined at the final hearing whether permanencyshould be achieved through adoption or long-term foster care.

The grandmother appealed on the basis that the judge had notruled her out after having conducted a Re B-S analysis. As adoption had notbeen considered the judge could not have weighed up the relative merits of thedifferent types of placement or conducted a holistic welfare analysis. Thelocal authority in opposing the appeal argued that the judge had beenevaluating which options were realistic before embarking upon the Re B-S analysis.

Theappeal was allowed. It was clear that the process the judge was embarking uponwas determining whether placement with the grandmother was a realistic optionwhich warranted the mandatory welfare and proportionality evaluation. On theevidence it was not possible for a court to rule out the paternal grandmotheras a potential carer and placement with her as a realistic option. The qualityof care given by the grandmother had been subject to two positive assessments.The child had remained living with the grandmother and, therefore, the statusquo argument was relevant. The local authority had supported the placement upuntil a few months before the hearing.

B4/2014/4160 

Neutral Citation Number: [2015] EWCA Civ 325
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SWANSEA CIVIL JUSTICE CENTRE
(HER HONOUR JUDGE GARLAND THOMAS)

Royal Courts of Justice
 StrandLondon, WC2A 2LL

Thursday, 26 February 2015

B E F O R E:
LORD JUSTICE MOORE BICK
LORD JUSTICE McFARLANE
 LORD JUSTICE VOS

IN THE MATTER OF S (A CHILD)

(Computer Aided Transcript of the Stenograph Notes of
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Mr Charles Geekie QC appeared on behalf of the Applicant
Ms Ruth Henke QC appeared on behalf of the Respondent

J U D G M E N T
 (As Approved)

Crown copyright©

LORD JUSTICE McFARLANE: 


Introduction 

[1]  In R (A child) 2014 EWCA Civ 1625 this court emphasized that the strictures described in the court's earlier decision in Re B S (Children) 2013 EWCA Civ 1146 did not apply to every conceivable option for the long term care of a child but only to those options which were "realistic".

[2]  At paragraph 67 of the judgment of Sir James Munby, with which I was and remain entirely in agreement, the President said this:

"Re B S requires focus on the realistic options and if, on the evidence, the parent(s) are not a realistic option then the court can at an early hearing, if appropriate, having heard oral evidence, come to the conclusion and rule them out." (Emphasis as in original).

[3]  The issue raised by this appeal requires consideration of whether or not the judge in the present case was justified in ruling out the child's paternal grandmother as a realistic option for the child's long term care, it being common ground that if she were not ruled out the option of placement with her would go forward for a full welfare evaluation up against the only other realistic option which is adoption.

Background 

[4]  The mother and father have been in a relationship for some time. Unfortunately, he is a young man who has suffered with difficulties with his mental health over some years and he has been involved in some criminal activity. They have two children: T, who is the subject of this appeal, a boy born on 6 August 2012, and therefore, now two and a half years old, and a girl N, born as recently as 18 July 2014 and now 7 months old.

[5]  The appellant before this court is the paternal grandmother of both children, a lady who is now, I think, divorced and certainly separated from her husband; she is aged 55 years. She put herself forward as a candidate to care for young T both before any court proceedings were underway and during the course of those proceedings.

[6]  It is necessary to say something therefore about T's early history. The local authority with responsibility for the area in which T was born had concerns about the baby prior to birth. Those concerns arose from the volatility of the parents' relationship, which included elements of domestic violence. T's name was entered on the local child protection register from birth in the category of "Emotional abuse" and that registration was maintained, effectively, for the entire period up to the hearing before the judge.

[7]  During his early months, and indeed, for the first 16 months of his life T spent a considerable time in the care of the paternal grandmother. The judge found that this was something of the order of four or more days each week. It was a voluntary arrangement entered into by the parents and he was in the care of his parents, or at least his mother, for the remaining days. On 13 December 2013, however, the parents' relationship, which, as I have indicated, had always been volatile, came to its final head. A major altercation took place, after which the parents never reunited. During that event the mother assaulted the paternal grandmother who at the time was holding young T in her arms. In consequence of this event it was agreed, with the local authority's approval, that T should henceforth be in the paternal grandmother's care on a full time basis. The local authority issued its application for a care order with respect to T on 26 February 2014. Therefore, the paternal grandmother continued to care for T under a series of interim care orders.

[8]  In February 2014 the local authority concluded an initial assessment which was negative in so far as it considered placement of T with either of his two parents but was positive about the paternal grandmother's continued care of the young boy. In May 2014 the local authority finalised a "Unified Family Assessment". The purpose of that document was intended to serve a range of statutory requirements, including that of the local authority having to supply a report to the court in the context of an application that the grandmother had by then made for a special guardianship order with respect to T in her favour as required by the Children Act 1989, s 14A and also the assessment was for use in assessing the grandmother's suitability as a foster carer. That assessment, which is a detailed document, was also positive about the long term potential for the grandmother to care for T.

[9]  Pursuant to that favourable report the local authority fostering panel gave unanimous approval in May 2014 to the grandmother as a "Friends and Family" foster carer for T.

[10]  At the Issues Resolution hearing in the care proceedings in August 2014, the children's guardian appointed for T and for young N, who had been born by then, expressed her concern as to the process adopted by the local authority in assessing the grandmother. The guardian was particularly troubled by the lack of focus upon the father's own upbringing in the care of the grandmother. She also referred to the potential for there to be emotionally abusive relationships in the paternal family. She was concerned that there had not been full and clear disclosure by the grandmother as to her own physical health. She was also concerned that there was and continued to be a poor relationship between the paternal grandmother and T's mother with the impact that that might have on the ability of the grandmother to facilitate contact between T and his mother.

[11]  Having considered the guardian's position, the court directed that there should be a further assessment, this time by an independent social worker Lydia Salmon. Lydia Salmon's instructions covered both the issues raised in relation to the paternal grandmother and also other concerns relating to the mother who was still putting herself forward as a candidate for the care of T, but in the context of this appeal I need not refer to those matters.

[12]  In September 2014 Lydia Salmon's report was filed. She had conducted one interview with the paternal grandmother lasting an hour and a half. She, however, expressed substantial concerns about the potential for the grandmother to provide a safe and good enough home for T. In headline terms, her concerns were these: there was, she advised, an emotionally abusive environment in the family home that had obtained during T's father's own childhood. The paternal grandmother and the father held a highly negative view of T's mother and regarded the mother and the wider maternal family as the sole source of concern as to T's past care. Despite what is known of his mental health difficulties and his criminal past, the grandmother is said to have the propensity to hold her son up as "perfect" and a person who is fully available to be a good parent to T and someone who could be entrusted with the child's care, this being entirely contrary to the opinion about the father that is held by the professions involved in these proceedings.

[13]  The paternal grandmother and the father had, in Miss Salmon's opinion, developed a "co dependant relationship with each other" in which they both needed each other and had learned that if one of them confronted the other then that would result in destabilising their relationship and they had thus avoided such confrontations as best they could. Miss Salmon, although not instructed to assess the paternal grandmother's parenting prowess, did observe some aspects of her care of T on the day of her visit which caused her concern. However, in the event, the judge, having heard Miss Salmon's evidence, recorded that Miss Salmon considered that the paternal grandmother could provide appropriate stimulation for T and respect his developmental needs. The various criticisms of that nature in the report were apparently no longer relevant issues in the proceedings.

[14]  Pausing there, I should record that, unfortunately, currently and throughout his early days, T has exhibited an element of global developmental delay and therefore the need for any carer that he has to meet his developmental needs and provide stimulation is, if anything, more acute in his case than it would be in more ordinary circumstances.

[15]  Overall, Lydia Salmon reported that the dynamics that existed within the paternal family were organised around the emotional needs of the adults, rather than the children. The implications of that dynamic were at the core of the relationship between the grandmother and T's father and were such that they brought into question the grandmother's ability to protect T from the father. Miss Salmon also identified the potential for the grandmother to be unable to set good boundaries for T himself if he were to brought up in her care, just as she had failed, in Miss Salmon's view, to do so in relation to the father. Miss Salmon concluded in these terms:

"I, therefore, have grave concerns about the (paternal grandmother’s) ability to protect T from the negative aspects of his father's care, or indeed, her ability to set good behavioural boundaries for her grandson."

[16]  Following receipt of Miss Salmon's report, the local authority reviewed its own assessment and concluded, in line with Miss Salmon's conclusions, that it was not in T's interest to grow up in the care of his paternal grandmother. That was also the conclusion and recommendation of the children's guardian.

[17]  On 9 October 2014 a key hearing took place in the progress of these care proceedings. At that hearing her Honour Judge Garland Thomas, who was the judge who conducted the final hearing which is the target of the present appeal, gave a number of directions, including the identification of the issues which were then live in the case. At paragraph 9 of the order recording that hearing the following appears:

"The key issues in the case are:

1) Can the mother meet the needs of T in the long term and within a timescale that is in his welfare interests?
2) Can (PGM) meet the needs of T in the long term?
3) In the event that neither mother nor PGM can meet his needs what are the alternative permanency plans for T?
4) Should those plans include consideration of a placement with his sister N?
 5) In the event of a plan for a permanent placement outside the family what are the appropriate plans for contact?"

[18]  At paragraph 11 the order goes on to record that the hearing that had been booked for 10 November 2014 would seek to determine the following issues:

"1) The extent of contact between the mother and the father.
2) Whether T can be returned to the care of his mother.
3) Whether T can remain in the care of his paternal grandmother."

[19]  There was an administrative difficulty in the progress of the proceedings in that, whilst by that stage the local authority had formulated a settled care plan for adoption for both children, it had not been possible to place the papers before the agency's decision maker in order to comply with the requirements before the local authority could issue an application to place the children for adoption and so it was accepted, it seems by all sides, that if a placement for adoption order were issued it could not be heard at the November hearing and would require a further hearing later in the year or early in 2015.

The November Hearing 

[20]  The hearing before Her Honour Judge Garland Thomas was undertaken at the family court sitting in Swansea in November and lasted for a period of seven days. The judge heard oral evidence from all those who had compiled assessments and also from the mother and paternal grandmother. During the course of the hearing the mother accepted that she was unable to put herself forward as a candidate to care for either of her two children. The mother was neutral on the question of whether T should continue to be placed with the paternal grandmother. The father apparently played no part in the proceedings at all.

[21]  The paternal grandmother who had issued an application for a special guardianship order back in February 2014 sought a special guardianship order in her favour with regard to T. She was not in a position to put herself forward as a carer for the younger child N. As I have indicated, the local authority plan was for adoption for both children and that was supported by the guardian.

[22]  The outcome of the November hearings is recorded in the resulting court order and in particular in these terms at paragraphs 8 and 9. At Paragraph 8 the court records that the threshold criteria under Section 31 of the Children Act were met with respect to both children. At paragraph 9 the following appears:

"The key issues in the case are: the court is determined that neither child can be brought up within their family of origin. The key issues remaining to be determined, therefore, are:

1) What is the right permanency outcome for the children long term foster care versus adoption?
2) (Contact arrangements)."

[23]  The substantive order records that the special guardianship application by the grandmother was dismissed. Directions were given for a further hearing of the care proceedings, which were adjourned under a continued interim care order. The next hearing would consider (if made) the local authority's application to place the children for adoption. In that regard paragraph 5 of the directions is of note. It is in these terms:

"The local authority shall file at court and serve upon the parties a final care plan and statement of evidence (which shall include a Re B S analysis) relied upon in support of the care plans by 4.00 pm on 1 December 2014."

[24]  We understand that although the hearing was set up to take place on 2 January, the intervening appeal by the grandmother against the November determination has effectively placed the proceedings on hold and no placement for adoption order has been made. The appeal is brought by the grandmother against the judge's determinations made in November. The appeal comes following grant of permission made by me on 26 January 2015.

Basis of Appeal 

[25]  As originally formulated the paternal grandmother's appeal was based upon the assumption that the judge had not regarded the grandmother's claim to be T's long term carer as being unrealistic in the context of Re B S. The appeal, therefore, sought to criticise the judge's judgment on the basis that in no manner could it be regarded as an holistic welfare evaluation in which the pros and cons of placement with the grandmother were evaluated against the pros and cons of adoption. As the judge had adjourned any consideration of adoption to a later hearing and had not mentioned the option of adoption in her November judgment, the author of the grounds of appeal was able to plead that this was a most egregious example of a "linear" judgment with a realistic option for family care being ruled out on a completely different occasion to that on which the option of adopting was to be considered.

[26]  Before this court Mr Charles Geekie, QC, who now acts on behalf of the paternal grandmother following a grant of legal aid very shortly before this hearing, has argued the appeal entirely in accordance with the primary pitch of those grounds of appeal. I quote in short terms from Mr Geekie's commendably focused Skeleton Argument. He summarises the appeal under three core propositions:

"a) In reality the judge conducted a final hearing at which she was considering the merits of family care against the merits of adoption.
b) At such a hearing the judge was obliged to consider proportionality and actively assess the reasonable alternatives in a holistic fashion.
c) In order properly to conduct the exercise, the judge was obliged to test the local authority case by reference to the checklists in both the 1989 and the 2002 Acts.

To mention no law at all falls so far short of the necessary scrutiny that the judgment cannot stand."

[27]  Miss Ruth Henke QC, who did not appear below, but today acts for the local authority and on the instructions of the children's guardian, fully accepts the validity of the arguments that are at the core of the appellant's case. Miss Henke submits, however, that those arguments have no relevance to the context in which the judge conducted the hearing. Although the judge did not say so in terms, Miss Henke submits that the court was engaged in determining whether or not the option of care by the paternal grandmother was a "realistic option" for T.

[28]  In concluding as she did and thereby ruling the grandmother out of any further consideration, the judge was doing no more than the President has held is permitted in Re R. In short, the local authority case is that the judge determined that care by the paternal grandmother was not a "realistic" option and she was entitled to come to that conclusion on the evidence before the court.

[29]  In response, Mr Geekie has declined to engage with that argument. His case is that the option of care by the grandmother was palpably a realistic one and that no judge could have regarded it as otherwise.

The Judge's Judgment 

[30]  It is necessary first of all to try to discern what issues the judge considered fell to be tried at the hearing. It is necessary to observe that it is not entirely plain what the answer to that question might be. At paragraph 2 of the judgment the judge simply lists the substantive applications which were before the court, namely that for a care order by the local authority special guardianship order by the paternal grandmother and a matter that is not relevant to this appeal an application by the mother for a further independent social worker's report.

[31]  Later, at paragraph 55 in the judgment, the judge indicates this:

"This court must consider whether either mother or paternal grandmother can care respectively for both children or for T alone."

Then in paragraph 56:

"... this judgment therefore considers whether mother or paternal grandmother can care, as placement applications have not yet been made."

[32]  So the judge was obviously aware that the local authority plan was adoption, was aware that she would have to, in all likelihood, consider an application for placement for adoption orders in due course, but nevertheless, embarked upon a process of evaluating whether or not the mother, and particularly in the context of this appeal, the grandmother, could care for T.

[33]  I am reluctant to summarise the evidence in the judge's judgment in any detail. The judge provides a wealth of detail within what is a substantial summary of the evidence. It is sufficient to observe the following high points.

[34]  The judge identifies and effectively endorses the factors of concern to which I have already made reference which arose within Lydia Salmon's report.

[35]  There was a further issue as to the paternal grandmother's honesty with the social workers about the amount of contact that she was having with her own son, T's father. There had been an embargo upon the father having any time with T or any contact with T at all other than that which was authorised by the court or the local authority, and the grandmother had signed an agreement to that effect. Outside the terms of that agreement the grandmother had, on the evidence before the judge, met up with her son on a number of occasions and had, as the judge considered, not given an honest or consistent account of those meetings when their existence was discovered by the social workers. It is right, however, to stress for the grandmother to meet the father without T being present was not prohibited by the requirements of the local authority.

[36]  Thirdly, the judge considered it was impossible to know what was being concealed from professionals in terms of the grandmother and the father's relationship, how often they were seeing each other and indeed, the father's particular whereabouts at any one moment in time.

[37]  At paragraph 49 of the judgment the judge concludes that part of her summary in those terms:

"All of these issues give me huge concerns as to the paternal grandmother's ability to work honestly and openly with the local authority or to appreciate the local authority concerns."

At paragraph 52 and 53 the judge says this:

"52.On the basis of the evidence in relation to paternal grandmother, I am not satisfied that she would take on board or accept or act upon any advice where it related to father, which is where the risks to T are greatest. This, judgment, is supported by Lydia Salmon's opinion that paternal grandmother and father have a co dependant relationship and become so preoccupied which each other's needs that the needs of any children in their care get ignored or at best take second place to the needs of the adults' relationship. Lydia Salmon concludes that she is unconvinced that paternal grandmother can work honestly with the local authority because she has little or no respect for its concerns in respect of her ability to meet T's needs or those of her son.
53. If paternal grandmother is unable to appreciate or understand the risks posed by her son (which, in my judgment, on the evidence, she cannot do), then she will be unable to protect T from the risks associated with father's behaviour."

[38]  Having summarised the evidence in that way, the judge then dealt with the part of the case relating to the mother, before moving at paragraphs 69 to 73 to give her evaluation of the paternal grandmother's claim. Again, I propose only to summarise the matters. The judge listed a number of negative factors. Firstly, the relationship between the grandmother and her own son, T's father. Secondly, the relationship between the grandmother and T's mother. Thirdly, the fact that the paternal grandmother regards the father to be a good parent, whereas the professional evidence is plainly to the contrary. Four, the propensity for the grandmother to undertake a continued relationship with the father, notwithstanding the concerns that the authorities have over that. Fifthly, the prevalence of what was described as "clutter" within the paternal grandmother's home. Sixthly, an apparent regret expressed by the grandmother that she had called the police following the assault on her by the children's mother on 13 December 2013, she apparently now saying that she is sorry that she did that and does not believe that the family would be in the position that they are now in had she refrained from dialling 999. Finally, the propensity for the grandmother to cover up for the father from time to time. All of this is couched within the judge's general finding as to the ability or inability of the grandmother to be honest with professionals.

[39]  The judgment contains absolutely no positive factors identified in relation to the grandmother. I will come on to consider that in a bit more detail in due course.

[40]  The judge's conclusion about the grandmother's potential to care for T is encapsulated following her detailed summary of the factors in one paragraph, paragraph 74, in these terms:

"It is argued on behalf of the paternal grandmother that she has been given inadequate support and training. I agree with the submission on behalf of the children's guardian that there is no realistic intervention that could ameliorate the concerns which have arisen. These are multi faceted, and in my judgment, show that T cannot safely remain with the paternal grandmother. He will not be adequately protected and is likely to suffer at the very least emotional harm. His development may be delayed even further."

The Appellant's Case 

[41]  The appeal hearing conducted this morning was unusually disjointed as the rival submissions made by each side have effectively gone unchallenged by the opposing advocate. In the case of Mr Geekie's submissions, Miss Henke fully accepts that if the judge was required to regard care by the paternal grandmother as a realistic option then the process undertaken in November 2014 fell entirely short of what is required. Conversely, Mr Geekie apparently considered the submission that the judge was in fact holding that placement with the paternal grandmother was an unrealistic option and that she was entitled to do so is so far of the mark as to require no response.

[42]  In the light of the concessions made at this hearing by the local authority, it is not necessary to do more than swiftly summarise the points that Mr Geekie has made. They are strong points and the concession by the local authority is entirely justified. Mr Geekie submits firstly that the context of the case was of a close blood relative of the child who had cared for him for a very substantial period up until December 2013 and full time thereafter. This, submits Mr Geekie, was a very significant factor in the case. It established a status quo for T which should have been taken into account.

[43]  Secondly, the points relied upon by the judge in support of her adverse decision against the grandmother had no reference at all to any proportionality evaluation. They were simply negative points made in a vacuum, looking at the grandmother alone.

[44]  Thirdly, the effect of the decision was to leave the option of adoption as the only option standing. Whilst it is possible intellectually to contemplate long term fostering for young T, Mr Geekie effectively submits that itself is not a "realistic" option for a child of so young an age.

[45]  Finally, he submits that the legal requirements, both of statute law and case law, properly and rightly and necessarily establish a structure within which judges need to conduct any evaluation of the potential for a family member, or indeed, anyone else to care for a child. The provisions referred to are the Children Act 1989, S.1, the Adoption and Children Act 2002, S.1, the authorities from this court that travel under the umbrella of the overall decision of Re B S, Article 8 of the European Convention on Human Rights and the case law that has flowed from Strasbourg in relation to these issues. It is the case that not one of those provisions is referred to by the judge in her judgment, in particular she does not at all refer to the child's welfare and does not refer, as would be necessary were she conducting a hearing to determine the placement order application, whether or not the child's welfare "requires" the parents' consent to adoption to be dispensed with.

[46]  In response, as I have indicated, Miss Henke for the local authority, does not take issue. She accepts that if the judge was embarked upon a welfare evaluation pitching placement with the grandmother against adoption, Mr Geekie is entirely justified in his submissions that the judgment needed to be within the statutory structure, supported as it is, by the wealth of case law to which I have referred. Her submissions are to the contrary, that all the judge was doing was considering whether or not the paternal grandmother could be ruled out as an option for the placement of the child and she places emphatic reference to paragraph 74, which I have already quoted. In particular, Miss Henke submits that the judge has found in terms in paragraph 74 that the child, "... cannot safely remain with the paternal grandmother", that it is therefore going to be unsafe for T to be parented by his grandmother and that, in effect, rules her out as a realistic provider of care in the future.

Discussion 

[47]  I certainly readily agree with Mr Geekie's submission and the basis of this appeal that if the process undertaken by the judge in November was intended to be a process of evaluating one realistic option against another then the judge's approach fell entirely and profoundly short of what is required. It is not necessary for me to labour that point in any detail. I have referred to the legal basis for the proposition and the case law is plain. What is required in such a hearing is a comprehensive, holistic, ordinary, welfare balance pitching the options that fall for consideration, one against the other, in the welfare scales and applying section 1 of the Adoption and Children Act 2002, and the welfare checklist there, if the issue is adoption, to the judicial evaluation.

[48]  I therefore turn to the question of whether or not the judge was in fact determining that the option of care by the paternal grandmother was not a "realistic option" and therefore one in accordance with Re R that could be removed from the otherwise mandatory welfare and proportionality evaluation.

[49]   Her Honour Judge Garland Thomas is an experienced family judge who will be well familiar with the requirements of statute law and the development in case law over the past 18 months which are most prominently encapsulated in Re B S and Re R. For a family judge to fail at every turn to establish the legal structure for a full welfare evaluation and in fact to carry out a process which simply did not include any analysis of the prospect for T of adoption in her judgment if she had thought that that was the task she was undertaking, is not, to my eyes, credible.

[50]  Although I deprecate the absence of clear language in the October order which established the agenda for the November hearing, and in the November judgment itself, I am prepared to accept that the judge, at least by the end of the hearing, must have considered she was evaluating whether or not placement with the paternal grandmother was a "realistic", long term option for T's future care, albeit that she did not refer to the term "realistic" in her judgment.

[51]  As I indicated in the opening words of this judgment, this appeal therefore brings into sharper focus than has hitherto been the case the question of what is to be or can be regarded as an unrealistic option, and therefore, ruled out from full consideration in the final overall welfare evaluation which is to be conducted where adoption is an option within the structure of ACA 2002, sections 1 and 52.

[52]  In Re R Sir James Munby and I agreed with the statement of Lord Justice Ryder in Re Y~(Children) 2014 EWCA 1479 28, where he said:

"Realistic is an ordinary English word. It needs no definition or analysis to be applied to the identification of options in a case."

[53]  Nothing that I say in this judgment is intended to alter or revise what was so clearly said by the President in Re R. The question in the present appeal is whether the judge, as I have found that she did, was justified in regarding placement with the paternal grandmother as outside the range of "realistic" options. The answer to that question requires consideration of both the substance of the evidence before the court and the evaluation undertaken by the judge. It will be neither necessary nor helpful to attempt any finer definition of the term "realistic" in this context. Each case must fall to be determined on its own facts. I would, however, stress the words of caution within the President's judgment in Re R when, at paragraph 67, he said this:

"So the possibility exists, though judges should be appropriately cautious, especially if invited to rule out both parents before the final hearing or, what amounts to the same thing, ruling out before the final hearing the only parent who is putting themself forward as a carer."

[54]  In quoting the President's words I would seek to stress the need for appropriate caution on the part of a judge invited to take this course. Secondly, although the President refers to a "parent" or "parents" in that passage, the same must apply in like terms where the option for family care comes from another relative, as for example here, a grandmother. In contemplating that there will be some cases where a parent or a family carer may be ruled out at an early stage full regard must however be had to the "mischief" that originally led to the line of cases in which the practice of linear judicial decision making was so roundly condemned. Preliminary categorisation of a care option as not "realistic" runs the risk of re establishing defective and inappropriate linear decision making by the back door. For an option to be regarded as not realistic requires the court to be in a position of some confidence and clarity that the option is plainly not one that would have any real prospect of being chosen if a full welfare evaluation of all the pros and cons were undertaken. Such an option would be one where its suitability to provide for the child's long term care is so far down the scale for any positive features that it may have to outweigh the established negative features.

[55]  In the present case, for example, if the father had sought to put himself forward as a sole carer of his children the court may well have held that that was not a realistic option. By the same token, the mother came to accept during the court process that she could not put herself forward as a carer, thereby accepting that care with her was not a realistic option.

[56]  On the evidence before the judge, in my view, it was simply not possible for any court to hold that care by this paternal grandmother in the present case was not a "realistic option" which in the child's best interests required full consideration by the court as against the only other option, namely adoption. The paternal grandmother had been the child's only carer for nearly a year and prior to that she had undertaken a large share of the caring task. The quality of the relationship between grandmother and child was, in my view, strikingly described in the earlier assessment reports. I quote from one or two of a number of examples. First of all, this at page E44 of the bundle:

"(Grandmother) has bonded well with T, who in turn has developed an affectionate and close attachment to her. Both seem at ease in each other's company. (Grandmother) provides T with considerable physical and emotional warmth. She has practical understanding of a growing toddler's developing needs and is an experienced parent in her own right."

At page E49:

"T is evidently fond of (grandmother). His demeanour and presentation suggest that he regards her as a dear and dependable person in his life."

Then more generally the same report at the next page says this:

"Firstly, (grandmother) has played a significant role in T's short life and has provided him with considerable stability."

Later, in the unified family assessment the following is recorded:

"PGM provides T with a consistent standard of safe care. She is committed to his welfare. Bonding and attachment issues are satisfactory. She provides him with appropriate stimulation. She also ensures he has regular physical exercise."

[57]  Those are strong descriptions of the relationship between this child and the grandmother, given the turbulence of the first 16 months of his life. For him to have established and held on to a relationship of that quality was important for him.

[58]   Secondly, the status quo, as the label that is often used, for T at the time of the hearing in November 2014 was plain. He was thoroughly established in the grandmother's care and in her home. Any consideration of her as a "realistic option" must require an evaluation of the factors that would make that an attractive option as well as those that would make it a less attractive option. If these were private law proceedings and a court were considering removing a child who was so firmly attached to his carer at the age of two, had effectively lived with her for most of his life, any family judge would place a premium upon the status quo and only look to move the child from such a home if it was necessary to do so.

[59]  Another aspect of T's attachment to the grandmother and the status quo, is the need for anyone contemplating moving him to consider the effect upon him of breaking that bond, both in terms of his sadness at the separation from the carer who he regards so warmly and so “dearly” and also in terms of his ability to make and remake further bonds of attachment in due course, all factors in a case that would be part of an overall evaluation of the grandmother's option for caring for the child, but which receive no mention in the judgment. A further factor in deciding whether this was a realistic option or not is that the local authority themselves had supported placement with the grandmother until at least July 2014, if not September, when Lydia Salmon's report was filed. This is a factor of some weight as the local authority's position was not simply based on the views of one social worker, but upon a number of social workers and the unanimous opinion of the fostering committee who regarded this grandmother as a viable option to provide a home for this child. In the light of the local authority's clear view only months before the final hearing, it is very difficult to conclude that the grandmother had thereafter ceased to be a 'realistic choice'.

[60]  Further, there is no criticism in the judge's findings of the grandmother's ability to provide ordinary or good enough care for T.

[61]  Next, the areas of concern that were before the court and were found by the judge to be established were based upon the family dynamics and the propensity for future emotional harm. These are subtle matters and represented only part of the totality of what care by the grandmother had to offer. They would certainly and rightly be factors of prominence in any overall welfare balancing exercise as against adoption but they could not in this case of themselves, in my view, justify ruling the grandmother out at a preliminary stage before the welfare balance fell to be struck.

[62]  Even if I am wrong in taking such a firm view as to the impossibility of any court regarding this grandmother's option as anything other than "realistic", I am afraid that the exercise conducted by the judge was itself flawed. As I have indicated, the seven or eight factors upon which she relied were all entirely negative. There is absolutely no reference in the judgment to the attachment that would have existed between T and the grandmother, no reference to the passages to which I have already referred nor to the status quo nor to the potential harm, albeit perhaps short term, to the child, of moving from the grandmother's. In terms of, therefore, its own internal structure, in my view, the judge's evaluation was fatally flawed.

[63]  Finally, to turn to at paragraph 74 upon which Miss Henke places reliance, I consider that this very short summary of the judge's conclusion raises more questions than it answers. She concludes that:"T cannot safely remain with the paternal grandmother."

[64]  I question quite what element of safety is in play here. Miss Henke understandably relies upon this summary of the judge's conclusion as support for her submission that it is simply not safe for the child to be in her home and yet the findings of the judge and the factors she relies upon do not support such a strong conclusion. The judge indicates that she does not consider that T will be "adequately protected" but does not identify with any precision the source of harm for which protection is needed. The implication is that it is from the emotional fall out from the relationships in the family. The judge holds that T is "likely to suffer at the very least emotional harm". This is a conclusion to which she came on the evidence that she had heard but it is notable that it is not "significant emotional harm". It is not a finding which would establish, of itself, in relation to the grandmother the threshold criteria under Section 31 or otherwise justify, of itself, a scale of harm which would underpin a decision to remove the child from her care.

[65]  Finally, the sentence, "His development may be delayed even further", does not appear to be backed up by any evidence or finding that the judge made in the course of her judgment.

[66]  So for all those reasons I consider that this appeal can only succeed. It is with a heavy heart that I come to that conclusion because the consequence is that the process of evaluation will have to be reopened.

[67]  Mr Geekie has helpfully indicated the structure of the order that he would propose but we have not heard from Miss Henke upon it. What I have in mind in general terms is that that part of the judge's order which ruled that the paternal grandmother was not a "realistic" option for the care of T should be struck out.

[68]  I make no decision at all to set aside any findings that the judge made about the father or the mother. This appeal relates only to the grandmother. The case which presumably now includes the application for the placement for adoption order will have to be re heard. Unless Miss Henke takes a different view, the approach taken by the judge in the November hearing, and the views to which she apparently came at the conclusion of it, indicate that it should be a different judge and it may well be that it ought to be a judge at a different court centre other than Swansea.

[69]  For all of the reasons that I have given I would allow the appeal and set aside those parts of the judge's order.

[70]  LORD JUSTICE VOS: I entirely agree with Lord Justice McFarlane's judgment. I only add a few words of my own because we are effectively overturning the judge on the factual question of whether the parental grandmother should be ruled out as an unrealistic option for the future care of the child.

[71]  Despite the fact that the judge heard the evidence and saw the witnesses, I agree that the judge's judgment was so unbalanced in the way that Lord Justice McFarlane has described, that it cannot stand.

[72]  I also respectfully endorse and would not wish in any way to detract from the guidance given by the president in Re R 2014 EWCA Civ 1625, pages 53 to 67 in relation to ruling out unrealistic options for the long term care of the child, but the position in this case has presented a glaring example of the pitfalls of being too ready to do so without undertaking the necessary Re B S comparative welfare evaluation and proportionality exercise. If there is only one possible long term family care option and that is the option that has represented the status quo for months or years, the court might think it undesirable to rule it out without undertaking the necessary comparison with the only other realistic option of adoption. This is particularly so where the reasons for the alleged unreality of the family option do not constitute a knock out blow and relate to a speculative or future, rather than an imminent, threat of physical or emotional harm to the child. It is one thing to say that there are issues or question marks over a carer's abilities or dispositions but it is quite another to say that those imponderables make it so unrealistic that a child could be entrusted to or left with that carer that the only other realistic option of adoption becomes an effective fait accomplis before the Re B S evaluation has even begun.I too would allow this appeal.

[73]  LORD JUSTICE MOORE-BICK: I agree that the appeal should be allowed. Mr Geekie QC criticised the judge for having failed to undertake the holistic approach to the determination of T's future care that is required by the case of B S and subsequent cases. However, it became clear in the course of argument that the real question in this case is whether the judge was entitled to find that the parental grandmother was wholly incapable of providing the care that the child needs. The judge was entitled to consider that question, as the case of Re R demonstrates, but any judge who is considering ruling out the only family member who puts himself or herself forward as a potential carer for a child should bear strongly in mind the President's warning that great care should be exercised before taking that course.

[74]  The judge's decision in paragraph 74 of her judgment that T could not safely be left in the care of his grandmother is a finding based on an evaluation of the evidence before her. The court is always reluctant to overturn a finding of that kind, particularly in a case where the judge has had lengthy and detailed reports and in addition has had the benefit of seeing the authors give evidence. In this case the judge also had the advantage of seeing the parental grandmother in the witness box.

[75]  However, many potential careers within a child's family are likely to exhibit some deficiencies as well as positive attributes and the standard which a family member must reach in order to be considered as potential carer for a child's long term future is not so high that such a person should easily be ruled out. A family member who is a potential carer can be ruled out of consideration only if he or she cannot realistically be regarded as a long term carer. Or, to put it another way, such a person can be ruled out only if the deficiencies which he or she exhibits are so great that they clearly outweigh any positive factors that there may be.

[76]  The evidence in this case was mixed. Some of the reports describe some positive attributes of T's grandmother and at least one of them noted that there was a strong bond between the child and his grandmother which had developed during the months in which she had cared for him.

[77]  I agree, for the reasons given by my Lord, McFarlane LJ, that this was not a case in which the judge was entitled to rule out the parental grandmother as a future carer for T. Her ability to care for him was one factor that should have been taken into consideration when the care options for his future were considered in the holistic way required by Re B S and subsequent cases.

[78]  For those reasons, as well as those given by McFarlane LJ, I too would allow the appeal.
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