B1/2002/0985
Neutral Citation Number: [2002] EWCA Civ 846
IN THE SUPREME COURT OF JUDICATURE                                  
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(HIS HONOUR JUDGE TYRER, Sitting as a High Court Judge)

                                  Royal Courts of Justice
                                  Strand
                                  London WC2
 
                                  Thursday, 16th May 2002
B e f o r e :

LORD JUSTICE THORPE

LORD JUSTICE RIX

-and-

LADY JUSTICE ARDEN

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P (A Child)

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MISS J HOYAL (instructed by Vickers & Co, London W13 9AA) appeared on behalf of the Appellant
MISS M CHATTERJE (instructed by Wilson Houlder & Co, Middlesex UB1 1SH) appeared on behalf of the Mother
MISS E BRAN (instructed by Creighton & Partners, London SW1A 2HN) appeared on behalf of Westminster City Council.
MISS J HALL (instructed by Yvonne Brown & Co, London E8 2NS) appeared on behalf of the Child
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J U D G M E N T
Thursday, 16th May 2002
1.	LORD JUSTICE THORPE: There are contested care proceedings on foot in relation to a four year-old girl named T. The case has been fixed for hearing by an order made on 8th April, paragraph 4 of which says:
“The final hearing be listed on 23rd May 2002 before a Judge of the Division [Family Division], with a time estimate of 1 day, listed at 'risk.'“ 
2.	By the same order His Honour Judge Tyrer refused the maternal grandmother's application for leave to be joined in the proceedings and to apply for a residence order. The maternal grandmother subsequently sought the judge's permission to appeal, which he refused on 26th April. The case did not reach this court until 14th May when an application was lodged for permission. Miss Hoyal, who represents the maternal grandmother, says that this is yet another case in which delay in exercising the right of application has been caused by public funding difficulties. It seems to me that in the circumstances we should not be unduly concerned about the fact that the application is some days out of time.
3.	In view of the imminence of the trial date an order was made on 14th May for an oral hearing of the application on notice this afternoon with the appeal to follow if permission granted. At the outset we granted Miss Hoyal her permission. She is supported in her appeal by Miss Chatterje, who represents T's mother, and she is opposed by Miss Bran for the local authority. Miss Hall for the guardian, although she initially lodged a skeleton argument supporting the local authority, has adopted a position of neutrality, given Miss Hoyal's oft repeated assurance that were this appeal to succeed the fixture on 23rd May will not thereby be jeopardised.
4.	It is not necessary to go into the history in any detail, suffice it to say that the appellant cared for T between August and October 2000 and then between December 2000 and the end of August 2001. During that period she was assessed by the local authority and the assessment, when delivered in June 2001, was critical of the grandmother's standards and capabilities. Accordingly, in August she deferred to the paternal grandmother who then took over the care of T until she withdrew in February 2002. That led to T's move to foster carers. The grandmother's case is that she had a clear understanding with the paternal grandmother that she would stand aside to support T's placement with her. Accordingly, during the months that T has been with her paternal grandmother her maternal grandmother, the appellant, has had no involvement.
5.	The application that she brought to re-enter the proceedings was filed on 18th March; so it emerges that she acted with reasonable promptitude once the placement with the paternal grandmother broke down.
6.	In refusing her applications the judge correctly directed himself to the provisions of section 10(9) of the Children Act 1989 which are familiar to practitioners in this field but which I will restate as follows:
“Where the person applying for leave to make an application for a section 8 order is not the child concerned, the court shall, in deciding whether or not to grant leave, have particular regard to -
(a) the nature of the proposed application for the section 8 order;
(b) the applicant's connection with the child;
(c) any risk there might be of that proposed application disrupting the child's life to such an extent that he would be harmed by it; and
(d) where the child is being looked after by a local authority -
(i) the authority's plans for the child's future; and
(ii) the wishes and feelings of the child's parents.” 
7.	The judge also directed himself to a decision of this court in the case of Re M (Care: Contact: Grandmother's Application for Leave) [1999] 2 FLR at 86. In that case the court had to consider the grandmother's application for leave to apply for contact under section 34. The court said that in exercising its discretion under section 34 in such circumstances the court should import with suitable adaptation the criteria contained in section 10(9) and that the court should furthermore apply the following test thus stated in the headnote:
“(a) if the application is frivolous, vexatious or an abuse of process it must fail;
(b) if the applicant fails to disclose that there is any eventual real prospect of success, or the prospect is so remote as to make the application unsustainable, 
then the application for leave should be dismissed; 
(c) the applicant must satisfy the court that there is a serious issue to try and must present a good arguable case.” 
8.	In rejecting this application it seems to me from the terms of Judge Tyrer's judgment that he had greater regard to the three factors defined by this court in Re M than perhaps to the statutory criteria. It is to be remembered that all that was said in Re M was said prior to the arrival of Convention rights within domestic legislation. This was a very closely related family member who was seeking to present her case as primary carer at a final hearing. I do not myself see how she could feel that her Article 6 rights had been fully observed if the judge were only to say to her, “Your daughter's case is that you should be the primary carer and you can give evidence in support of your daughter's case.” He then went on to say, “The prospects of you succeeding are too remote to satisfy the Re M test”, which must inferentially have meant that he took the same view of her daughter's case. All that, of course, was said on a reading of the papers without having heard live evidence.
9.	Indeed courts have to be careful to avoid superfluous elaboration of cases so frail that they do not merit a live hearing on oral evidence. But this was not such a case. The judge was himself fixing a live hearing on oral evidence. The appellant, given the fact that neither parent was available for consideration as primary carer, was the nearest available relative. Placements within the extended family are very common in the community from which T comes. The fact that this was not an applicant who sought party status out of the blue but was only seeking to re-enter was, in my judgment, highly relevant to the exercise of discretion. All she was seeking to do was to resume a position for the relinquishing of which she had advanced a plausible explanation.
10.	It cannot even be said that Judge Tyrer refused her application in order to safeguard the fixture. As my Lord, Rix LJ, has pointed out the judge reached his conclusion on the stated understanding that there would be no further assessment of the maternal grandmother were she restored to party status and that she would proceed to trial on the basis of her oral evidence and submissions made on her behalf.
11.	Returning briefly to the statutory criteria to which the court must have particular regard, the application for a residence order is the simple application that the grandmother advanced to ensure that her granddaughter did not pass into alternative parenting. Her connection with the child could hardly have been closer. I do not see what risk there could be said to be of disruption to T since the fixture was not to be jeopardised. The only effect of granting the application was to ensure that she was not only a witness in support of another's case, but a witness in her own cause. Obviously her proposals were in conflict with the local authority's plans for T, but the wishes and feelings of the parents were solidly with her. I have no doubt at all that the judge on this occasion was plainly wrong and that he was diverted from proper conclusion by an excessively critical and perhaps premature appraisal of what he took to be the grandmother's case. But in the end the outcome of a fixture to determine whether a close family member can be trusted to provide good enough parenting to avert the obvious second best of placement out of the family must depend upon the judge's opportunity to make a direct assessment of the candidate for care through the process of trial, and most particularly the exposure in the witness box.
12.	For all those reasons I would allow this appeal.
13.	LORD JUSTICE RIX: I agree.
14.	LADY JUSTICE ARDEN: I agree that the appeal should be allowed. It would not, in my judgment, be a violation of the Convention right of access to court if the court were summarily to dispose of an application in an appropriate case. However, I am satisfied, for the reasons that Thorpe LJ has already given, that the judge here in effect, conducted a mini-trial without the evidence of the appellant answering criticisms made of her. He therefore reached a view on matters which could not be determined without having heard the evidence.
(Application allowed; costs to be assessed in accordance with Community Legal Service Regulations).