cASE nO. B1/2000/2387
BAILII Citation Number: [2000] EWCA Civ 3011
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINICPAL REGISTRY
OF THE FAMILY DIVISION
(Mr Nicholas Mostyn QC)

Royal Courts of Justice
Strand
London WC2

Monday 31st July, 2000
B e f o r e:

LORD JUSTICE ALDOUS
LORD JUSTICE SCHIEMANN
LORD JUSTICE THORPE

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RE H (A CHILD)

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040
Official Shorthand Writers to the Court)

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MR D BEDINGFIELD (Instructed by Thos Boyd Whyte, Bexley Heath DA6 8AB) appeared on behalf of the Applicant/Mother

MISS J PLANGE (Instructed by Messrs Steel & Shamash, London SE1 7AA) appeared on behalf of the 1st Respondent/Maternal Grandmother

THE SECOND RESPONDENT appeared on his own behalf

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J U D G M E N Tt
1.	LORD JUSTICE ALDOUS: I will ask Lord Justice Thorpe to give the first judgment. 
2.	LORD JUSTICE THORPE: This morning permission to appeal was granted to De to appeal the order of Mr Nicholas Mostyn QC sitting as a deputy judge of the County Court on 8th June 2000. He had before him an application by De to vary a residence order made in 1996 in favour of her own mother, Da, in relation to her child, A, born on 7th April 1992.
3.	The composition of the family was sufficiently complicated to justify the judge incorporating into his judgment a genogram that had been prepared by the social worker who gave expert evidence. That reveals that Da, who is 52 years of age, had three children by a previous relationship with a Mr R. De is one of those three. However, Da married G H in 1973. G H had three children by his previous wife, then deceased, and those three children were all much of an age with the three children born to Da. So all six were brought up as children of the H household. In addition, one child was born of the marriage, N, who is now aged 23. So within the generation of children of Da and G there are seven. De had a relationship with B R between 1990 and 1994, and it is of that relationship that A was born. 
4.	The residence order made on the 25th September 1996 reflected a good deal of disturbance in De’s life. During the preparation of proceedings that preceded the consent order of 25th September, De had said in her statements: 
“I think my mother looks after [A] well and that [A] is very well cared for. I appreciate that it is not good to disrupt [A’s] life now that she is used to living with my mother.” 
5.	That arrangement, whereby A was cared for by Da, had had its inception in February 1994.
6.	The proceedings before the judge commenced with the issue of the mother’s application dated the 13th September 1999. Shortly before its issue, the mother had raised assertions to both the relevant local authority, and also to the police, that over the course of approximately a decade, from her age of four, she had been sexually abused by G H and also physically abused by Da. Those allegations therefore figured large in the preparation of her application for variation. During the interlocutory stages the District Judge entered as paragraph 5 of his order: 
“It is recorded [G H] will only have contact with [A] in the presence of a third person.” 
7.	That record was a practical record since at that date both families were resident in the Greenwich area, but G H had moved to Rotherham in Yorkshire in order to take up employment and to prepare for the family to join him there.
8.	The time estimate given by the District Judge for a trial on 17th March was one day. That is seemingly a curious provision, bearing in mind the complexity of the allegations which on any view were bound to be heavily contested.
9.	In preparation for that hearing, Mr Bedingfield was instructed on behalf of De and Miss Plange on behalf of Da. G H, who was manifestly vulnerable to a finding on De’s allegations, was not separately represented since he fell outside the legal aid financial limit.
10.	So when the parties appeared in front of Mr Mostyn, there was a consensus between counsel that it would be quite impossible to try out the allegations of historic abuse within the time allotted for trial. The required extension, to something between three and five days, would have involved putting the application back to the end of the year, if not further. Da was proposing to take A to join her husband in Rotherham in July and there was, accordingly, a pressing need for an early determination. 
11.	Accordingly, to cite the judgment. On 17th March Mr Bedingfield informed the judge that:
“... he was not seeking findings in relation to the contested allegations of historic sexual and physical abuse, but was content to proceed on the basis that I should only take into account those historical matters that either were agreed or not challenged.”
12.	By the end of the case Miss Plange, for De:
“... described that stance as ‘extraordinary and unsatisfactory’.” 
13.	The judge rejected that criticism. He said: 
“It seems to me that the mother’s advisers are entitled to present the case in an attenuated form in order to seek an early resolution of an issue that is plainly bearing heavily on all concerned.” 
14.	He then said: 
“... I have conscientiously endeavoured throughout to remind myself that the allegations are neither proven, nor have they sought to be proven, and that I must therefore decide the issues on the footing that the events alleged did not take place.” 
15.	In this court Mr Bedingfield has criticised the judge, who he says has done some injustice to his client by dismissing her application on other grounds and without having made any determination on that ground which was its principal foundation, namely the allegations of sexual abuse. He in fairness is equally, if not more, critical of himself, since he tells us that with the advantage of hindsight he believes that he was wrong to have allowed the trial to continue on such an artificial basis, and that in order to right that wrong, this court must intervene and direct a five-day hearing before a Family Division judge in the autumn to make a proper and profound exploration of these allegations. 
16.	Plainly, Miss Plange, having criticised the basis of judgment in the court below, does not seek to defend it in this court. She simply says that she can amply uphold the judgment on other grounds, even if the judge fell into error in this approach. 
17.	That the judge did fall into error I am in no doubt at all. The task which he attempted - the conscientious endeavour to decide the issues on the footing that the events alleged did not take place - would have been a safe enough approach in purely adversarial proceedings in some other realm. But in Children Act proceedings the judge is there in a quasi-inquisitorial role. Child protection is one of his principal responsibilities and allegations of this sort must either be withdrawn or adjudicated upon.
18.	The extent to which the judge found himself unable to observe the boundary that he had imposed, and the extent to which counsel too found it impossible to proceed on the agreed basis, emerges from the continuing paragraphs of his judgment.
19.	When the mother gave evidence in support of her case, she was, of course, fully cross‑examined by Miss Plange on issues of credit, which extended to the mother’s case in relation to the historic allegations; Miss Plange putting to her a considerable number of inconsistent actions and inconsistent statements during the course of the history. That led the judge to say of her evidence that she had failed to give convincing answers to the points put by Miss Plange.
20.	Equally, when G H gave evidence as a litigant in person the judge recorded that: 
“He was cross‑examined [by Mr Bedingfield] about the allegations of abuse ...” 
21.	The judge continued:
“... I found his denials to be uncontrived and genuine.” 
22.	The judge then added: 
“I am not, in making this observation, of course making any finding as to the truth or otherwise of the allegations.” 
23.	However, the judge had earlier said in his judgment, in relation to the mother’s evidence, that: 
“... I am satisfied that what was said by the grandfather is true.” 
24.	This confusion was further compounded when the judge, in stating his conclusions, said that in relation to risk of harm to A: 
“I do not, for the reasons I have given, attribute in the scales any risk of harm by reference to the unproven allegations of abuse against the grandfather.” 
25.	A further difficulty arose in relation to the expert evidence from the social worker, Miss Gruffyd Jones. She had filed a comprehensive report in which she firmly supported the mother’s case for variation. The judge rejected her recommendations, partly on the basis that she had not carried out a fair balancing exercise between the pluses and minuses that went for the grandmother’s past contribution. But the judge also said: 
“Moreover I sensed that Miss Gruffyd Jones accepted as true the allegations of abuse, and that this had influenced to some unascertainable degree the recommendation that she advanced.” 
26.	Obviously if the judge was going to reject the recommendation of the expert on the basis that it rested on an erroneous assumption of past fact, then that issue could only be satisfactorily aired if the judge was in a position himself to establish the relevant factual foundations and put those relevant factual foundations to the expert, to enable the expert to reconsider her concluded opinion on the basis of what the judge found to have happened in place of what the expert believed to have happened. 
27.	It seems to me, that in a situation like this, although the rationalisation of the arrangement is understandable enough, there really can be no shortcuts. The judge has to put the party who has brought the case to the election: “Do you withdraw these allegations or do you pursue them?” and if the answer is: “I pursue”, then the judge is under an obligation, by one means or another, to find time for a proper judicial investigation, even within the constraints that family arrangements impose. 
28.	However, it does not seem to me that the demonstration of error in that area avails Mr Bedingfield for much. For the judge made some very clear findings, not only as to credit but also as to responsibility and competence. In relation to the mother, when finding the history, he held that since 1994 the longest period of time that A had passed in her care was three days, despite a number of opportunities when she might have had A for longer. 
29.	He also found that she had shown a marked lack of commitment and responsibility in relation to participation in A’s school life. He recorded that when she had been asked in cross‑examination why she had not sought details of school events, the mother had replied that it had never crossed her mind.
30.	The judge also found that the mother’s contemporary relationship with Mr M was by no means as stable and as tranquil as she described. The judge found against her that there had in the previous summer been no less than three violent quarrels, in the course of one of which the mother had thrust her hand through the side window of the car and on two others when the police had been called.
31.	By contrast, he found that Da had shown a real understanding of A’s needs. It was not in dispute that Da and G H had cared for A extremely well during the course of their years of care. Equally, in relation to credibility, the judge described De as failing to delineate the boundary between fact and fantasy. He said that she had been less than frank in a number of respects. Mr M he described as plainly evasive. By contrast, he described Da as an impressive witness: frank, solid and dependable. He described G H as a perfectly satisfactory witness. Finally, he described A’s father, B R, as a good witness whose view that A should remain where she was was deserving of some weight. 
32.	As I have already recorded, although he described Miss Gruffyd Jones as highly intelligent, he clearly found that she was relatively inexperienced for such a case and he was quite satisfied that she had not allowed sufficient valid credits in relation to Da’s case. 
33.	So he came to his conclusions. He said that he was not balancing the respective merits and demerits of the competing households. He said that he had first considered the mother as a potential carer for A and had asked whether the supposition in favour of placement of A with her should be displaced. His conclusion was that it should. His reasons for displacing it were then expressed by reference to the welfare checklist. A’s wishes and feelings he found to be clearly to remain where she was. In relation to her physical, emotional and educational needs, he said that the mother had a lack of commitment to school activities and to contact; in contrast to the grandmother’s responsibility. He acknowledged that there would be change in either event, but he held that the change of location was far less significant than the change of carers.
34.	He, in relation to risk of harm, identified the relevant potential harm as psychological damage that would result if the relationship between De and Mr M broke down. He relied upon the proven and unquestioned track record of Da and her superior capacity to meet A’s needs.
35.	He then went on to impose upon the parties a regime of contact which seemingly must have presupposed that there would be only a matter of a mile or two between the two households, since he provided for alternate staying weekends from Friday evening to Sunday evenings throughout school terms. This was a handed-down judgment and he heard no submissions from counsel before announcing the pattern of contact. He finally said: 
“... the grandfather has undertaken that he will not have contact to [A] unless in the presence of another person. In the light of my findings this undertaking will be discontinued.” 
36.	As I have shown, there was not actually an undertaking from G H, but only a record of his intention. As expressed in those two sentences, the proposition is vulnerable to criticism from Mr Bedingfield, since obviously as the case had proceeded the judge had abstained from making any findings in relation to Mr H’s dangerousness and, absent any such findings, there could be said to be a continuing need for protection.
37.	But I think the non sequitur or the apparent non sequitur in this paragraph is easily explained. What the judge was really saying was in the light of his conclusion that A should continue to live with Da and G, and in the light of the fact that Da was proposing to join G H in Rotherham in the foreseeable future, clearly it would be quite impossible for the existing record to be maintained. On that analysis, Mr Bedingfield has accepted this morning that he can no longer maintain that limb of his appeal. 
38.	There are therefore only two bases upon which Mr Bedingfield effectively advances his appeal. First of all, he says that the judge ignored the presumption in favour of the mother. He particularly cites two relatively recent decisions in this court. One is the decision in the case of re D [1999] 1 FLR 134 and what he says is the contrasting decision of the court in the case of re P [1999] 2 FLR 573. He says that here the judge has reduced what Mr Bedingfield described as “a presumption” to nothing more than a flexible supposition which is likely to yield to relatively slender contrary indications.
39.	What the judge actually said merits recording. He rightly, in my view, referred to an earlier decision of this court in re W [1993] 2 FLR 625, where Balcombe LJ had said: 
“‘It is the welfare of the child which is the test, but of course there is a strong supposition that, other things being equal, it is in the interests of the child that it shall remain with its natural parents, but that has to give way to particular needs in particular situations.’
Waite LJ stated:
‘I agree that the principle is best and most succinctly expressed by Lord Donaldson in re H to the general effect that the welfare of the child is indeed the test, but there is a strong supposition, other things being equal, that it is in the interests of the child to be brought up by his natural parents.’”
40.	Mr Mostyn then said: 
“It does not seem to me that the reference to a ‘strong supposition’ is intended to denote a monolith, that is to say a supposition of equal strength in every case irrespective of the circumstances in question. It seems to me that while I must recognise the existence of the supposition the weight I attach to it must depend on and yield to the circumstances of the particular case. For example, it must be truistic that the longer the length of time that the child has been with the non-parent the less potent the supposition is. Similarly, where, as in this case, an actual order for residence has been made in favour of the non-parent some years earlier, that, too, must dilute the strength of the supposition.” 
41.	For my part, I can see no error in that direction. There is a question that can well be posed in relation to the citation from the judgment of Balcombe LJ: who is the natural parent? Of course the judge, by using that description, intended the biological parent. But the biological parent may not always be the natural parent in the eyes of the child. In cases such as those to which Mr Mostyn referred, where the child has been for long in the settled care of a non-parent, that non-parent will effectively have become the child’s psychological parent and in circumstances such as that, in weighing the rival claims of the biological parent over the psychological parent, the court must arrive at its choice on the application of the welfare test, the paramountcy test contained in section 1, having particular regard to the welfare checklist contained in section 1(3). That is precisely what the judge did in this case.
42.	I do not myself find any particular assistance by considering what has now become a whole range of decisions of this court upon the particular facts of diverse individual cases. In the end, the guiding star for any judge of trial must be the words of the statute. Here there was before the court an application for the variation of a section 8 order. That is an application falling within section 1(4)(a) of the statute. Accordingly, it is necessary for the court to apply the paramount consideration of welfare under section 1(1) and also to have particular regard to the matters set out in subsections (a)-(g) of subsection (3).
43.	Presumptions in favour of a natural parent are nowhere to be found within the section, and judicial overlay on that section must obviously be treated with caution. The seminal cases are, in any event, in the House of Lords, particularly the decision of the House in re JC [1970] AC 668 and the decision in re KD [1988] AC 806. The speech of Lord Oliver of Aylmerton in the later case (with which all the other members of the House agreed) proceeds on the basis that parental rights, to which proper regard must always be paid by the court, must also be qualified by considerations of what is best for the welfare of the child.
44.	As my Lady Butler‑Sloss LJ said recently, in the case of re P to which Mr Bedingfield referred: 
“There is no presumption in the statutory code of the Children Act which can displace s 1(1) that the welfare of the child is the paramount consideration. There is, in particular, no presumptive right on a variation application at this stage of N’s life that her natural parent should be preferred to the foster-parents. On the contrary, the first question is: if it was right to place her with the foster-parents in 1994, why should she be moved in 1998?” 
45.	Mr Bedingfield had in his notice of appeal made considerable play of Article 8 of the European Convention on Human Rights and De’s right to family life. But of course, as he has conceded this morning, that contention really adds nothing to his principal attack on the judge’s application of the Children Act 1989. Obviously just as De has a right family life, so does Da; and A is very much a member of that family.
46.	I pass briefly to Mr Bedingfield’s second criticism which is derived from a brief paragraph in the judge’s concluding remarks which is, in any event, at best something of an add on to his primary rationale. In paragraph 13.9 of his judgment, he said: 
“Moreover, I am not satisfied, applying the test set by Ward LJ in re P, that the mother has demonstrated any relevant change in circumstances on the part of the grandparents since the 1996 order. I do not regard the proposed physical move to Rotherham or the unproven abuse allegations as meeting that standard.” 
47.	Mr Bedingfield says that the judge was inferentially concluding that for his client to succeed there was a burden on her as a matter of law to establish some relevant change in circumstance. But reference to the judgment of Ward LJ in re P shows that he did nothing other than to record (at page 595 of the report) what was an agreement between the parties in that case. All that he said was: 
“All the circumstances must be taken into account as they bear upon the child’s welfare. Because this is an application to vary an existing order, it is common ground that what has to be established by the applicants is a change in the circumstances which prevailed at the time of the decision which it is sought to vary.” 
48.	If Mr Mostyn was elevating that into some rule of law, then he would, in my opinion, have been falling into error. But it is not possible to extract from the judgment that process of reasoning. Apart from the paragraph that I have already read, the only earlier word in the judgment was the citation from the judgment of Ward LJ which he appended to his citation from the judgment of Butler‑Sloss LJ without comment.
49.	It seems to me perfectly plain that as a rule of practice it is a sound rule, namely if a court has decided in year one that the arrangements for the future care of the child which it is about to sanction are those most likely to promote welfare, then the court will not arrive at a different conclusion in year two without some fairly fundamental change of circumstance in the interim. But the passage from the judgment of Ward LJ should not be elevated to any more. Were there to be some strict obligation on an applicant seeking the variation of a section 8 order to prove some change of circumstance, then that would no doubt have found expression within the statutory checklist. But there is nothing within the terms of the section to impose such a strict obligation. So again, although this criticism has some foundation within the terms of the judgment, it is not one that survives analysis. 
50.	For all those reasons, I conclude that on the judge’s careful assessment of the credibility, responsibility and parenting capacity of the mother, and on his equal assessment of those qualities in the grandmother, he was perfectly entitled to arrive at the conclusion which he did.
51.	We have been told by Miss Plange that the grandmother effected the move to the North on 27th June and that A has settled well into her new school. Obviously issues of child protection are ordinarily dealt with not within private law proceedings but within public law proceedings. We have been told that Miss Gruffyd Jones communicated with the relevant local authority in Yorkshire and invited them to initiate child protection investigations in relation to the inconclusive allegations of past abuse. Miss Plange tells us that the local authority, Rotherham, have visited the home and that they have accordingly undertaken responsibility for any outstanding child protection issues. She is not clear as to whether or not A’s name has been placed on the “at risk” register. 
52.	The other development which has emerged from submissions is that the attempt to apply the contact order imposed by the judge has predictably proved most unsatisfactory. Although A is now with her mother on the three-week summer holiday provided by the judge, the attempt at alternate weekend contact during school terms proved pretty disastrous. Seemingly, there were angry words between mother and grandmother at collection, although Mr Bedingfield on instructions denies that. It hardly seems likely that that is entirely invented, and furthermore manifestly to subject a child to a very long journey from West Yorkshire to South London on a Friday and Sunday evenings is unthinkable. The journey involves more than a straightforward Intercity Express. There has to be a change of trains in Sheffield. I can only think that in imposing this regime on the parties without submission, the judge was assuming that his regime was good only so long as A remained in Greenwich.
53.	We have heard submissions as to how that regime should be varied. Miss Plange submits that in the light of the considerable travelling difficulties, the best that can be devised is to supplement the school holiday visits dictated by the judge with every school half-term; that is to say, February, June and October for a full week Saturday to Saturday stay. That means that apart from sharing the school holidays, the mother would know that after five weeks of school term, she would have A for a full week in the south.
54.	In response, Mr Bedingfield has suggested that the half-terms should be split, two to his client, one to grandmother, with regular contact between half-terms, not only in South London but also in Rotherham, when the mother would have either visiting or staying contact. 
55.	For various reasons, I strongly prefer Miss Plange’s proposals. They have the advantage of clarity. They have the advantage of minimising the extent of travel and they have the advantage of minimising the risk of A witnessing further angry altercations between her mother and her grandmother. Nothing could be sadder for a child than to see the degree of conflict that there seems to be between her mother and her grandmother. 
56.	For all those reasons, whilst I would dismiss this appeal, I would only intervene, insofar as it is open to us to do so, by varying the order for contact simply to reflect the change of circumstance since the date of judgment in the court below. Strictly, that should have been a matter for a variation application in the court of trial, but obviously in order to save unnecessary costs it is sensible for us to deal with the matter this afternoon. 
57.	LORD JUSTICE SCHIEMANN: I agree with the order proposed by my Lord and with the reasons he has given. In particular, I agree with his emphasis on the need to treat with caution the judicial overlay on section 1 which has been provided in the context of innumerable different cases, each turning on a multiplicity of interacting facts. 
58.	LORD JUSTICE ALDOUS: I also agree.
ORDER:  Application for permission to appeal granted; appeal dismissed save that paragraphs 4(1) and (2) of the judge’s order be set aside and there be substituted an order that the mother do have contact for the three half-terms; legal aid assessment of the Appellant’s and the Respondent’s costs.
(Order not part of approved judgment)