Neutral Citation Number:  [2013] EWHC 4580 (Fam)
IN THE CHELMSFORD COUNTY 
AND FAMILY PROCEEDINGS COURT  
Case No: CM12C05191

Priory Place
New London Road
Chelmsford 
Essex
CM2 0PP

Date: Wednesday, 8th May 2013

B E F O R E:

THE HONOURABLE MRS. JUSTICE PARKER DBE

----------

In re K (A minor)

----------
Transcript from an Official Court Tape Recording.
Transcript provided by:
MK Transcribing Services,
29 The Concourse, Brunel Business Centre,
Bletchley, Milton Keynes, MK2 2ES.
Tel: 01908 640067; Fax: 01908 365958;
DX 100031 BLETCHLEY.
Official Court Tape Transcribers.
----------
--------
Judgment
Note: Notwithstanding that this judgment would have been expressed in different language had it been delivered after Re B-S (Children) [2013] EWCA (Civ) 1146. the President of the Family Division has sanctioned its publication. 

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children [or, in the Court of Protection the incapacitated person] and members of their [or his/her] family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Wednesday, 8th May 2013

MRS. JUSTICE PARKER:

1.	KRK (‘K’) was born on [a date in] 2012 and is just coming up to six months of age.  His mother and his father sadly have problems, particularly of addiction, which has meant that they are not able to look after this little boy.  The mother accepts that reality, but the father does not.  The mother is undergoing a rehabilitation programme.  The father is remanded in custody, awaiting trial on drug related dishonesty offences.  His counsel’s position statement records that (i) he has refused to discuss his refusal to consent to the child being placed for adoption with his solicitor (ii) his view is that to bring up a child and meet its needs is the easiest thing in the world, and (iii) he has not been given a fair chance to demonstrate his parenting ability.  He is not able to state why he has not cooperated to attend contact or engage in any other work with the Social Worker.  

2.	The father’s father, the parental grandfather, is married to the parental step-grandmother: I shall call them ‘grandfather’ and ‘grandmother’.   The grandparents have made an application for leave to make an application for a special guardianship order in respect of K.    They have been married for 17 years.  He is 50 and she is 51.  They are therefore young grandparents.  I have no reason to doubt that they are successful, thriving parents of successful functioning young people with children of their own.  They have a rich and sustaining family life.  

3.	The grandparents said very shortly after K was born that they wanted to offer him a home within his family and community, for his benefit.  They were joined to these care proceedings in January 2013. A hearing date was then fixed for final resolution in April.  They had initially embarked upon the special guardianship process before Christmas. An initial viability assessment was carried out by the Local Authority, which was guardedly positive. However, by 6th March when the case came on at this court, grandmother and grandfather had come to the conclusion, I am sure with an extremely heavy heart and sadness and feelings of regret, that it was not right to pursue the application.  The grandmother wrote on behalf of herself and her husband to the Circuit Judge. She wrote that that it was the hardest letter she had ever had to write, that they loved K and have a bond with him, but they want what is best for him. She said that although it broke their hearts, they had to put their feelings to one side and focus on K.  She said that health issues which had not initially seemed significant enough to affect them caring for K, had come to the fore during the assessment process. She was having tests for Multiple Sclerosis, and the results so far were pointing towards an MS diagnosis.  The grandfather,   who had had a heart attack two and a half years previously, had started having chest pains.  They had done a lot of soul searching, and after a lot of deliberation and tears, decided that it was unfair to K for them to put themselves forward as carers. They could not give him 100 per cent, which they believed he deserved.  They wanted him to have the very best in life, and if they truly believed they could give him this, they would still be seeking special guardianship. But they had to be realistic, so that he could have a happy, loving, secure and stable upbringing. If their health deteriorated any more, it would be hard to meet all his needs.  They would always have him in their hearts, and drew strength from knowing that he would have a happy loving childhood with a family that loves him. It would be unfair for him to live with them if he would then have to live with someone else because they were unable to care for him. They hoped that K would understand when he is older that they had done this for him, to give him the best possible life.  

4.	The Circuit Judge rightly praised the grandparents for what she regarded as a difficult and unselfish decision, and discharged them as parties to these proceedings.  She gave directions for further filing of evidence, including the application for a placement order. The grandparents were represented, and I am in no doubt now that they knew that the hearing was intended to secure K’s placement by adoption.  In fact, the application was adjourned because the court was not satisfied that the father had been served, and so the matter was re-listed.  

5.	Today is 8th May 2013. Last Friday, the grandparents, through their solicitors, issued their application, returnable today.  The grandmother wrote another letter to the court. She wrote that they had not expressed themselves correctly in her previous letter. They were 100 per cent committed. They had wanted to tell the judge the real reason that they were pulling out but could not, because they were scared that at a later date when K was older, he would read the letter and it would upset him.  She said that they did have some health problems, but that the real reason for withdrawing was that they were terrified that if they were awarded special guardianship there was nothing to stop K’s mother or father seeking and obtaining custody of K. Then he would have been subjected to their lifestyle and would have been at risk.  They have since learned that this could not happen because the parents’ legal aid funding had ceased and they would never be able to make an application.  They had always thought and believed that K deserved to stay with and have the benefit of his loving, large, warm and close natural family, and this would be best for him emotionally.  

6.	The grandparents have been having weekly contact with K.  Mrs. K has volunteered that in fact they have missed a couple of visits, but I accept that contact has gone well and shows that they have a continuing love for and commitment to him.  

7.	It is urged upon me that as grandparents they have demonstrated that there is sufficient benefit to K to explore the possibility of special guardianship. If I give leave there would need to be a full Section 14 assessment. But the benefit of a family placement outweighs the detriment to K in having his future delayed.  

8.	Mr. Taylor, who has presented the court with calm and very focussed submissions in a very difficult emotional situation, and to whom I am most grateful, has in a comprehensive, highly distilled, and most helpful document, set out the basic principles which I have to apply.  

9.	Section 14A(12) of the Children Act 1989 provides that applications for leave to apply for a Special Guardianship Order are to be treated in a like manner to applications for leave to make a Section 8 Order.  Therefore I have to look at Section 10 (9) of the Children Act. I have to consider the nature of the proposed application, the applicant’s connection with the child, and any risk that there might be of the proposed application disrupting the child’s life to such an extent that he would be harmed by it. If the child is being looked after by a Local Authority I have to consider (1) The Authority’s plans for the future, and (2) the wishes and feelings of the child’s parents. 

10.	Mr Taylor submits to me that the advantages of family life are so strong that I must give this opportunity for a delay, a beneficial delay for K, to assess these grandparents and to give them leave to make their application. 

11.	I am also referred to Re M [1995] 2 FLR 86, 

“If the application is frivolous, vexatious or an abuse of process, it must fail;”

I do not think it is that.  

“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, the application for leave should be dismissed;

The applicant must satisfy the court that there is a serious issue to try and must present a good, arguable case.”

I accept that the criterion of connection with the child is fulfilled.  

12.	The father, it is to be presumed, although he has not given instructions, supports his parents’ application.  The mother is strongly opposed.  She thinks the child’s future needs to be decided now.  

13.	Re M, of course, was decided long before the 26 week time limit was introduced. It is shortly to be a statutory requirement. I treat it as applicable in this case. I have to consider the leave criteria and the Re M criteria in conjunction with the 26 week requirement.  The 26 time limit must be considered in conjunction with the assessment of the risk of the proposed application disrupting the child’s life to such an extent that he would be harmed by it. It is not target but an outside limit. It is not an absolute but applies in all but exceptional cases. The presumption or assumption which lies behind the 26 week requirement is that delay beyond 26 weeks will be harmful, particularly to a baby of K’s age.  The time limit is shortly to expire.

14.	A special guardianship assessment could take 12 weeks. The social worker is going on holiday for 2 weeks, so that might extend it. Then of course there would have to be a hearing, which could be contested by any of the parties, including by the mother.  Therefore it would not necessarily be concluded shortly.  

15.	I did not agree that the assessment required by statute for the SGO application should include investigation to assist the court to form a view as to how it should treat the change of mind. I needed myself to evaluate the grandparents’ explanation for withdrawing from what seemed at the time to be a very firm and considered decision in the child’s interests.  

16.	I decided to approach this particular case not just on paper, but to hear some evidence about the issues raised so that I could form a view as to the merits of the grandparents’ application.

17.	So this application which was set down very briefly for a half hour hearing, has taken part of the morning.  The grandmother gave evidence. I accept that she had not expected to do so.

18.	I accept that Mrs. K was trying to help and not mislead the court.  But there was a lot of confusion and a lot of emotion in her presentation. I find it difficult to accept that she needed to give health reasons to K as the explanation for her decision.  Anxiety about health could be just as or more upsetting for a little boy than a bland anodyne statement that the grandparents wanted the best for him. This would not have suggested that they did not want him.  

19.	The grandmother’s evidence vacillated between two positions. She told me that their health was not of very great importance and had been used as an excuse. But she also demonstrated that their health problems were important in her mind when she wrote that letter, and indeed are not currently resolved. 

20.	The grandmother has not produced any medical evidence.  This was a matter within her own hands and could have been addressed when the application was made. Its absence has not hampered my ability to assess her evidence. 

21.	The grandmother told me that she had a lumbar puncture in December 2012.  Dilatation of her left pupil had been observed on routine ophthalmic exanimation and there was a   concern that she might be developing multiple sclerosis. She also had an MRI brain scan which showed white deposits which could have been attributable to MS or to ischaemic damage from mini-strokes. She had a second MRI in March.  She spoke to a neurologist after the hearing on 6th March.  He told her that if she did have MS, it was not likely to be life limiting, which was her primary concern.  That, of course does not really address the issue of the problems which the condition could create in caring for a young and active child.  She had not had any feedback from the doctor until she rang the GP this morning, to be told that the second MRI scan showed that she did not have MS.  It then emerged that she has an appointment with another neurologist next Wednesday.  As far as she is concerned, that is just to be absolutely sure there is no problem. It seems to me self-evident that she is still the subject of some in depth medical scrutiny.   It is obviously of sufficient concern to the GP to use this resource. 

22.	She told me that her husband had had chest pains as a result of the anxiety of having their ‘lives under a microscope’ in the Local Authority assessment.  She then said that notwithstanding that this was how they had experienced it  and how difficult it had been, that she now understood that there would have to be an assessment  ‘Well, you have just got to put up with it.’  When asked why having been told by the neurologist that there was no life limiting MS condition and with no further feedback, it then took five weeks to issue this application. She said that this was because there had been a lot of family problems, she had lost a relative, one of her sons was ill, her brother-in-law was ill. The stresses and strains had all just been too much. 

23.	She accepted that she had a discussion with the Social Worker about special guardianship. Then she said she had not understood it, but it was not clear what she did not understand.   She had of course legal representatives throughout.  She had not taken any further legal advice about special guardianship before her change of mind. 

24.	The father is in prison with an uncertain release date. But she said that she was not alarmed by the contents of the father’s very assertive position statement, which made it quite clear that he wanted to claim the care of his son as soon as possible.  I did not get any sense that she had thought through what the risks were or that she was now prepared to face up to them.  

25.	She was also very muddled about the effect on K of the delay.  She said that it was only a few more weeks, his foster mother was wonderful, he would not lose out if they made this application at this late stage. She thought there had been no need for them to make the application any sooner. She then said that they had been thinking about it and agonising about whether they should make an application: they did not think they would be allowed to. Then when asked to think about K’s position she said she did accept that K would be disadvantaged by delay in resolving his future.  

26.	I am sure that this application is entirely well meant and good-hearted. But it is emotional, unconsidered, unrealistic, and not thought through, I suspect that the prospect of losing contact with K has been a very powerful factor here.  

27.	No doubt in March the grandparents reached their considered but painful decision to agree to a firm plan for this little boy for adoption with difficulty, but focussing on the child.  I am afraid that whatever the love that the grandparents have for K, that their approach at the moment is not child-focussed in the objective way required.  The grandparents know very well that they cannot properly commit themselves to this task.  This came through in the grandmother’s evidence, when she had to face up to reality. They know that their health problems are important. They are aware of the potential disruption which could be created for K, particularly by his father, but perhaps by the mother too when she is in a less sanguine state of mind, for the rest of K’s minority.  Although Mr. Taylor quite rightly stresses the benefits of this warm and close family, that was available in March when they made their decision.  

28.	I am satisfied that there is a very significant risk that the proposed application will disrupt K’s life to such an extent that he would be harmed by it.  I am quite satisfied having had the opportunity to assess in sharp and painful focus what the problems are likely to be, that this application has no real prospect of success.  So I do not simply bring the guillotine down on the basis of 26 weeks.  This is a summary decision but it is welfare based nonetheless, and based on an evaluation of the facts.  It is for me to factor in all these considerations in K’s interests.  Therefore I refuse the application. 

29.	Cases where relataives or friends come forward at the last minute are likely to present the greatest challenges to the court in complying with the 26 week limit.  The Court has a duty to consider whether there are alternatives to a care order. But in my view the court is entitled to dismiss such an application without detailed assessment and must take into account delay.

30.	Some measures may assist the court to manage such applications :- 

a.	Orders must record that parents have been advised that failure to identify family members at an early stage is likely to preclude their assessment and that the case will not be adjourned.  

b.	Where a relative has come forward and then withdraws a court should record that that person understands that this is their final decision and is unlikely be revisited without the strongest justification. 

c.	Any application for further assessment or joinder by a relative or other person must be resolved very swiftly.  Such applications will usually be able to be dealt with on paper. Oral evidence, to be adduced only if necessary and proportionate, should be short and focussed. 

----------