Case No: B4/2007/2307
Neutral Citation Number: [2008] EWCA Civ 64
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM FAMILY DIVISION, SHEFFIELD DISTRICT REGISTRY
(HER HONOUR JUDGE SHIPLEY)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 17th January 2008

Before:

LORD JUSTICE WALL
and
MRS JUSTICE BLACK
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IN THE MATTER OF G-P (A Child)

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Ms J Troy (instructed by Messrs Graysons) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED

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Judgment
Mrs Justice Black:

1.	A is fourteen years old.  She was born on 21 June 1993, and we are very pleased to see that she has come here today to see the proceedings.  She is seeking leave to appeal against an order that HHJ Shipley made in relation to her on 20 September 2007.  She instructs her own solicitor and counsel has appeared for her on this leave application, which has taken place at the direction of Wilson LJ without notice to the other parties.  She was also represented before HHJ Shipley as a separate party to the proceedings by her current solicitor, not by Mrs Troy, although she still had a guardian looking after her interests who made her own independent representations as to what would be in A’s best interests.  HHJ Shipley made a care order in relation to A, endorsing the care plan for A to remain in foster care and to have supervised contact with her mother monthly for four hours.  A has been provided with a mobile telephone and she can also ring her mother when she wants to, provided that it does not last for more than an hour each day.  A feels very, very strongly that she would like to live at home with her mother and that that would be best for her, although Mrs Troy has told us today that she is doing her utmost to deal with the situation as it is, which is living in foster care.

2.	Given that living with her mother is not possible at the moment -- and, quite rightly, nobody is seeking to appeal the care order insofar as it provides for continuing foster care -- what A wants is to see her mother frequently.  She was seeing her twice a week on a supervised basis before HHJ Shipley’s order, and I think that she would like that to happen again.  The history of this matter is clearly set out in HHJ Shipley’s judgment.  The problem that brought A to social services’ notice was her poor school attendance.  The judge made various findings about that and about other aspects of the case and, as nobody seeks to appeal those findings, we can take it that A had gone to three different schools in two years; and in the academic year of 2005/2006 when she was twelve years going on thirteen years old, she barely attended school at all.  The mother was convicted in 2006 of failing to get A to school and a parenting order was made but that did not improve the situation.

3.	In the academic year 2006/2007, A was meant to go to Abbeydale Grange School between September 2006 and the end of January 2007.  She attended on only fifteen and a half days.  The mother explained A’s absences as being due to various illnesses, but the judge did not accept that explanation, nor did she accept the mother’s explanation that A stayed away from school because of bullying there.  The medical records for A did not show attendances at the doctors that were consistent with a medical problem that would have been a proper reason for A staying away from school.  

4.	The local authority began care proceedings in January 2007.  The mother then made her way with A to Canada without permission.  A was recovered from there in mid‑February 2007 and placed with foster carers, where she has been ever since.  

5.	Various assessments were done for the care proceedings and the experts, who prepared the reports, gave oral evidence.  Dr Epps, a consultant child and adolescent psychiatrist, had prepared a report on A.  He did not see her mother, or observe any contact between A and her mother. Dr Fong, a clinical psychologist, prepared a report assessing both A’s parents and A, all of whom he saw.  Dr Pilgrim, consultant adult psychiatrist, prepared a report on A’s mother.

6.	Dr Pilgrim’s view was that the mother had some serious difficulties about her personality.  I do not think that A listened to all the evidence that was given in the court below about this subject and I do not really intend to say anything more about that, but it was going to be a long-term condition.  

7.	Dr Fong endorsed that the mother had got significant difficulties.  He gave certain views about A’s situation.  He felt that A’s social development was behind that of her peers and that her independence had not been fostered as it needed to be in her adolescence.  He thought that her educational development had been impaired by her not attending school, although she is a very clever girl.  He thought that she was over-involved in her mother’s issues and he was concerned about her mother’s ability to meet her needs and thought it would be extremely difficult to alter their problematic relationship.  

8.	Dr Epps said a lot of complimentary things about A after he had met her.  He found that she was very bright.  He considered that she had got the intellectual and emotional capacity to instruct a solicitor, as indeed she has done throughout the first instance proceedings and now, through these appeal proceedings.  But he did observe this, in the context of advising that she could still benefit from a guardian to look after her interests as well as being involved herself in the proceedings:

“A certainly has the intellectual and emotional capacity to instruct a solicitor herself within these proceedings.  However, I would add the reservation that, although she is not suffering from any significant emotional impairment, she is insufficiently mature to know what is always in her best interests.”

Dr Epps also formed the view that A seemed to rely on her mother as her main attachment relationship.  A told Dr Epps that she was very close to her mother and that she wanted to live with her and was happy there.  She did not personally see any problem with her childhood or adolescence with her mother.  Dr Epps did deal with the question of contact.  That was at paragraph 44 of his report.  He said:

“A has informed me that she looks forward to contact visits with her mother, although she resents the fact that the visits are supervised.  I have not been asked to meet with [A’s mother], or to observe the visits.  Similarly, I have not received any information about the quality of the visits or about A’s behavioural and emotional state before, during and after the visits.  As such, on the basis that A reports finding the visits beneficial, I can only suggest that the visits continue as planned.  From the information that I do have, and from A’s self‑report, [A’s mother] is A’s primary attachment figure and is very important to her sense of well-being.”

9.	By the time of the hearing in front of HHJ Shipley, all three of the experts to whom I have referred were recommending that A needed to be in foster care.  The local authority had also assessed the mother insofar as the mother had permitted that, and they thought the same.  The guardian was in agreement as well.  The question of contact was subject to expert evidence of various kinds.  The mother and A were both agreed in wanting it to be much more frequent than the local authority proposal, which is what the judge ultimately accepted and which was for twelve times a year.  A and her mother wanted twice a week contact to continue as they were having at that point.  The local authority had originally proposed contact eight times a year.  The guardian had disagreed with that, thinking it was too little, but once the local authority had increased that proposal to twelve times a year she was in agreement with them and thought that that was in A’s best interests.   Both the local authority and the guardian felt that more contact would risk undermining A’s stay in foster care.  They both wanted supervision, not least to prevent the mother absconding again with A.  Dr Fong also agreed with the local authority’s proposal.

10.	Dr Epps gave different evidence on the question of contact.  He added to his written report, it appears, in his oral evidence.  For obvious reasons we do not have a transcript of his oral evidence at this stage, but we can tell something of what he said from HHJ Shipley’s judgment, and also from the skeleton argument of Mrs Troy.  HHJ Shipley said, at paragraph 84 of her judgment:

“Dr Fong supports the twelve times a year proposed, Dr Epps does not.  Dr Epps feels it would be too severe a reduction.  He likened it to ‘a festering wound’ whereas more frequent contact aids relationships which can be built up and developed.”

11.	Mrs Troy says at paragraph 19 of her skeleton:

“In this case, the psychologist Dr Epps expressed the view that to reduce direct contact for the Appellant with her Mother from twice weekly visits to monthly visits would create what he compared to ‘a festering wound’.  Although Dr Epps supported the Local Authority in its plan to place the Appellant in foster care, he gave reasoned oral evidence in support of an order for weekly direct contact.  There were concerns about the ability of the Appellant to settle in a foster placement -- she had refused to unpack any of her belongings during her 7 month stay in foster care during the proceedings -- and this problem would be exacerbated if the Appellant was worrying about her Mother during long periods between visits.  Further, given her age, there was a risk that she might abscond from any placement and/or seek unauthorised unsupervised contact with her Mother if contact was so limited.”

12.	In her judgment the judge set out a number of important factors, as part of her global analysis of the future plans for A, which touched on the issue of contact.  She had heard the mother give evidence herself and she (the judge) felt no confidence in the mother’s ability to work with professionals to put right the sort of problems that there had been in the mother’s care of A up to that point.  She also noted that the mother had had unauthorised contact with A during the summer, whilst A had been in foster care.  That contact had been caught on camera on one occasion.  Nobody knew whether it had happened on any other occasions as well.  The mother had denied the contact had happened until she was confronted with the evidence of the cameras.  The judge pointed out that that action of seeing A illicitly was encouraging A to be deceitful to the local authority and to the foster parents.

13.	The mother had also written a disturbing letter to A, which we understand was found by the foster parents among A’s belongings.  In that letter, the mother incited A to behave badly in the foster home, and contemplated that they may make off to live secretly somewhere else in the country.  The mother said the letter was a ruse to see who was going through A’s things, but the judge found, as she was entitled to do, that even if that were the case, the actions of the mother in relation to the letter involved deceit and collusion.  The mother had also been critical of the foster carers in court during the hearing.  

14.	The judge was plainly very, very conscious of what A wanted about contact and about the whole case.  She needed to take A’s wishes into account and she needed to give them proper weight.  It is very important that young people like A know that they have been listened to and that their views have been fully considered before a decision is taken about what is, after all, their future.  A had been present during much of the hearing and, as I have said, she had her own representative, and she was therefore very properly and actively involved in the decision-making process.  Of course, it is sometimes the case that where plans are being made about difficult aspects of the future, the person at the centre of the planning (here A) is not the best person to know what should be done.  They know what they want to happen, but they cannot always tell whether that would turn out for the best.  In this case, in addition to the wishes of A, the judge also had to be alive to the advice of Dr Epps that A was not sufficiently mature to know whether what she wanted would be in her best interests.  Dr Epps did ultimately agree that what A wanted about the contact was the right way forward, but that does not diminish his caution about the aspect of her maturity of development and her ability to know what was in her best interests.  

15.	It is quite plain from HHJ Shipley’s judgment that she found the question of contact very anxious indeed.  She said so in terms at paragraph 102, saying:

“I have, however, been exercised by the level of contact proposed in the care plan.”

16.	She said, at paragraph 105, that she knew that A and her mother would be bitterly disappointed with her findings and with the order that she was going to make.  In paragraphs 102-104, HHJ Shipley sets out the various factors that she took into account on the question of contact and her reasons for deciding as she did.  It may be easiest, because these paragraphs encapsulate the considerations very shortly, if I were just to read those paragraphs:

“102. I have, however, been exercised by the level of contact proposed in the care plan.  In particular, I questioned whether twelve times a year direct contact will actually increase the risk of absconding and whether it will cause A to pine for and to worry about her mother so she is less likely to settle in foster care.  If A and her mother are so opposed to this level of frequency, will it, in fact, be counter-productive?  I have thought long and hard in this respect about the evidence of Dr Epps.  On balance however, I am persuaded by the evidence of the guardian and Dr Fong that the level proposed is appropriate and in A’s best interests.  I prefer their evidence and reasoning to that of Dr Epps.  In particular, Dr Fong is the only expert who has seen and assessed both the mother and A and, indeed, the father.  He alone has observed and has assessed their contact first hand.

103. Moreover, the guardian is an experienced one.  She felt that eight times a year was insufficient, and she said so, and she persuaded the Local Authority to increase it to twelve times a year.  She, too, I find, has put a lot of thought into the appropriate level of contact.

104. Both Dr Fong and the guardian were of the view that more contact would run a greater risk of undermining the foster placement, and I accept that.  I therefore approve the care plan and I make the Care Order.”

17.	Mrs Troy submits on behalf of A that HHJ Shipley has given a judgment which she has a real prospect of successfully appealing for a number of reasons.  Firstly, she points out that there have been endorsements recently of the importance of taking children’s views into account.  She referred us to the decision of Re D (A Child) (Abduction: Foreign Custody Rights) [2006] UKHL 51 and the comments of Baroness Hale on the subject of children’s views and the importance of listening to them.  Whilst Ms Troy does not submit that a child’s wishes, even when the child is A’s age, are of determinative quality or necessarily the primary factor in the proceedings, she does submit that significant weight should be given to A’s clearly expressed view in the light of her age and understanding; and she complains that insufficient weight was given to that factor in this case by the judge.  Secondly, she argues that the judge should have accepted the expert evidence of Dr Epps on contact.  She argues that Dr Fong, whose advice she did accept along with that of the guardian, was not in fact instructed to and did not carry out an assessment of A, at least in this respect.  Thirdly, she argues that the judge fails to give sufficient reasons for departing from Dr Epps.

18.	When a matter is considered on the question of permission to appeal, as we are considering this, the court certainly does not just rubber stamp what the judge below has said.  It is very anxious to make sure that another critical look is taken at things to make sure that there have not been any mistakes or anything which could arguably be mistakes, in the way that the judge has approached things.  I have submitted this case to that anxious scrutiny and considered all the points that Mrs Troy makes on A’s behalf both in writing and today orally.  I have reached the view, however, that the proposed grounds of appeal do not have any realistic prospect of success that would justify leave to appeal being granted.  HHJ Shipley had a discretion with regard to what she was going to do about contact and, in fact, she gave clear reasons for her decision about that, after anxious consideration of it in the paragraphs that I have read out.  They refer, those paragraphs, to the issues which have concerned Dr Epps and led to him giving his view that there should be more frequent contact.  They are issues which obviously concerned the judge too, not least the risk that not seeing her mother, except twelve times a year, might increase the risk of A absconding, cause her to pine for her mother and worry about her, and disrupt her settling into foster care.

19.	The judge also took into account, as those paragraphs reveal, the strong opposition of A and her mother to the contact plan, wondering if their opposition would make a reduction in contact counter-productive.  I know that Mrs Troy says that Dr Fong was not instructed to assess A and advise on contact.  That is not entirely fair when one looks at the papers.  Dr Epps was instructed to do a full psychological profile of A, and met her and administered tests in order to do that.  Dr Fong, however, was instructed to see whether the mother could meet A’s needs and, of course, in fulfilling that part of his instruction, he needed to have a look at what A’s needs were, both to see her mother or to live with her mother.  He met A, her father and her mother and he saw contact as well.  He was, in fact, as the judge pointed out, the only one of the experts who had that advantage.  The judge had also got expert evidence about the mother’s own problems, which was obviously material to the issue of what level of contact would work best because, sadly for A, what happens about contact is not something that only she has an input into, but something that is also very much influenced by how the mother is doing.  The judge also had the factual evidence of the problems that there had been in the summer over the letter and the illicit contact, both of which had the potential to undermine the placement.

20.	The judge was entitled to accept the evidence of some of the experts over others.  What she accepted was the view of Dr Fong and the guardian and the local authority.  She was entitled to prefer their evidence to that of Dr Epps and, in so doing, having taken into account A’s wishes and feelings, as she obviously did, to differ from the strong views of the mother and A.  In my view, she articulated proper and sufficient reasons for doing so.  I, too, recognise that monthly contact is not what A wants.  I know how very disappointed she will be that this matter cannot go any further on appeal.  I hope she can understand that the order has not been made because her views have been ignored, but because, in this particular instance, there are other considerations that lead those considering her case to the view that, at the minute at least, less contact will be easier and better for A than more.  I would therefore refuse leave to appeal.

Lord Justice Wall:  

21.	I entirely agree.  My Lady has covered the ground fully and I add only one or two very short observations of my own.  The first is that Ms Troy’s submissions to us this morning, although they were brief, covered the ground admirably, as does her skeleton argument.  A can be assured that everything that could be said on her behalf has properly been said, and indeed has been fully considered by this court.  As my Lady said, this court is not a rubber stamp.  We have read the papers anxiously, we have looked carefully at all the points made, and I have come to an identical conclusion to that reached by my Lady.
  
22.	I hope A will forgive me if I say something which may sound rather pompous.  At my age time goes all too quickly.  I fully appreciate that at A’s age it goes very slowly indeed.  But, in three and a half years, she will be eighteen.  She has her whole life before her, and the importance, in my view, of what the judge has decided is that it gives her a platform to build her own life, particularly to get qualifications and to go to university and, in that context, I am quite satisfied that the order the judge made for contact with her mother was the right one.  

23.	My final word, of course, is that that order is variable.  It is not written in stone.  But the person who really will have to move if it is to be changed is not A herself but her mother.  I appreciate that that is not something in A’s hands.  However, for all the reasons my Lady has given, I entirely agree this application stands no reasonable prospect of success and, sympathetically as it has been put to us, it must be refused.  

Order:  Application refused