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IN THE SUPREME COURT OF JUDICATURE FAFMI 1998/1593/2

(THE HONOURABLE MR JUSTICE WALL )

Royal Courts of Justice

Strand

London WC2

Friday, 30 April 1999

B e f o r e:

LADY JUSTICE BUTLER-SLOSS

LORD JUSTICE WARD

LORD JUSTICE TUCKEY

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P (A CHILD)

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(Handed Down Transcript of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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MR E RYDER QC, PROFESSOR H REICHER & MR T EDGE (Instructed by Rowlands, Manchester, M2 2RW) appeared on behalf of the Appellant

MISS M DE HAAS QC & MISS J WALKER (Instructed by Stephensons, The Pound, 230 Chapel Street., Salford, Manchester) appeared on behalf of the First and Second Respondents

MISS S BIRTLES (Instructed by the Official Solicitor, 81 Chancery Lane, London) appeared on behalf of the Third Respondent

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

LADY JUSTICE BUTLER-SLOSS:

1. N is 8, born on the 19th July 1990. She was born with Down’s Syndrome. From 11th December 1991 at age of 17 months she has lived with foster parents. The parents first sought her return in August 1994, having previously in May 1992 decided that she should be placed for adoption.

2. There have been extensive proceedings in relation to N brought by the foster parents and the parents, first in wardship and then under the Children Act 1989. The Official Solicitor has, since early 1994, acted as her guardian ad litem. There was a seven day hearing before Wall J in October 1994. He made a residence order to the foster parents on the 16th November 1994 with reasonable contact to the parents. The parents launched but did not pursue an appeal.

3. On the 26th July 1996 the parents applied for a defined contact order. At a subsequent hearing on 5th September, a defined contact order was made by consent. On the 23rd March 1998 Wall J heard an application by the parents to vary the 1994 residence order. After a five day hearing he refused the residence application; made a defined contact order for four times a year and imposed a restriction upon making any further residence applications without leave of the court, (a section 91(14) order). The appeal, with leave of this Court, is from all three parts of his 1998 order.

4. The parents, the P family.

N is the 14th child of an Orthodox Jewish Rabbi and his wife. The father is 64 and was headmaster of a Jewish school. The mother is 54. Two of the 14 children still live at home, aged 12 and 9. The father is a survivor of the Holocaust and was detained in concentration camps with his family, many of whom died. No doubt as a result of his experiences, he has a morbid fear of illness and hospitals. They have a married daughter, Frieda, who has offered herself as a future potential carer of N. The family has a strong tradition of religious and cultural beliefs which permeates the lives of all its members. The mother expressed it as:-

"Our religious and cultural heritage is our way of life.....It is very much at the core of each of our identities."

The family obeys strict dietary laws and dress and celebrates the Jewish festivals. The members of the family are English speaking but speak Yiddish at home. The judge found that the parents were warm, decent, caring people, successful parents and their children and grandchildren were evident testimony to that success.

5. N’s medical condition.

N was not only born with Down’s Syndrome but, as a young child, also suffered from serious respiratory problems. At the age of five weeks she was placed with short term foster carers while her mother went into hospital to undergo a hysterectomy operation. After her return home in October 1990, her health deteriorated. According to the 1994 judgment of Wall J: -

"Her nasal and bronchial passages were undeveloped and she was susceptible to infection; she had problems with her breathing and had to spend periods on a ventilator. Although the dates are not entirely clear, it appears that N was in hospital for a week at the end of December 1990, for a further week at the end of January 1991 and for two days in March 1991.

In May 1991 the decision was taken for N to have a tracheotomy, an operation which was performed on 18 June 1991. In simple terms, this is an operation to cut a hole in the windpipe from the front of the neck to enable air to obtain direct entrance to the lower air passages. A consequence is that it is necessary to introduce a tube into the windpipe to keep the opening from closing and that in turn the tube has to be kept clean and unblocked by mucus.

N remained in hospital after the tracheotomy until 11 December 1991....... The tracheotomy was reversed on 28 June 1993 and ......

the probability was that N would not need another tracheotomy."

She had three further admissions to hospital in 1993, but none of significance thereafter.

6. N’s disability came as a great shock to the parents. At the time that she was due to leave hospital Mrs P began to doubt her ability to care for her and deal with the tracheotomy tube which required constant supervision. After consultation with the family she came to the reluctant conclusion that she and the father could not meet all the demands of caring for N and asked the local authority to accommodate her with foster parents on her discharge from hospital. The local authority was unable, despite strenuous efforts, to find an Orthodox Jewish family with whom to place N. It placed N with experienced foster parents, the C family. The placement was expected to be short-term, three to six months at most, and there was no suitable alternative foster placement.

7. The foster parents, the C family.

The foster parents are non-practising Roman Catholics and are 54 and 51. They have seven daughters, two of whom, twins aged 16, are still at home. N went to them from hospital on the 11th December 1991 and has remained with them ever since. The tracheotomy was in place for two years and required the most careful monitoring. Both foster parents and their daughter Brenda shared the responsibility of keeping the tube clear and from time to time removing and replacing the tube in the windpipe. N slept for several years in the foster parents´ bedroom. The foster family have throughout given an exceptional level of intensity of care to N and have become absolutely committed to her. The judge was extremely impressed by them. He said in his 1994 judgment:-

"The depth of their commitment to her, and the profundity of the emotional experience through which they had passed in caring for her,(particularly, of course, in the phase of her life when she had the tracheotomy tube in place) shone through their evidence: indeed the matter of fact, slightly hesitant language with which they spoke of N rendered their evidence all the more impressive."

Brenda is aged 29 and married. If anything happened to her parents she has offered herself as potential future carer for N, whom she sees as her sister.

8. In May 1992 the parents came to the conclusion that N should be placed long term with foster parents or adopters. On the 5th August the local authority held a case conference in which it resolved to seek a placement with an Orthodox Jewish family. The foster parents then indicated for the first time a wish to care for N themselves. By November 1992 social workers were concerned about the degree of attachment of N to the foster parents. The local authority formally assessed the foster parents as prospective adopters of N. At the same time they began an assessment of a Jewish family whom they considered suitable as adopters. This Jewish family was rejected by the parents. Further attempts were made to find a Jewish family and in the meantime N remained with the foster parents.

9. There was mounting concern about the increasing attachment of the child to the foster parents. The Clerk to the local Beth Din had been consulted in November 1992 and it was again consulted together with the Jewish Social Services. At a meeting it was agreed that a final and time limited effort should be made to find a Jewish family. Wall J set out the considerable efforts by the local authority to find a Jewish family and the consultation process which they engaged in with the agencies and the natural family. On the 10th January 1994 the foster parents issued wardship proceedings and were given leave by Hale J to issue Children Act proceedings: see C v Salford City Council & others [1994] 2 F.L.R 926.

10. 1994 Hearing.

At the hearing of the residence application by the foster parents in October 1994, Wall J heard extensive evidence including expert evidence from Dr Arnon Bentovim, child psychiatrist, Dr Frank Bamford, paediatrician, Dr Mary Ward, child psychiatrist and Mrs Valerie Mellor, a clinical psychologist, about the abilities and prospects of development of a Downs Syndrome child. Dr Bamford’s paediatric appraisal was that N might live 30-40 years and would be likely to achieve the level of understanding of an 8 year old. In a careful and comprehensive judgment the judge came to the conclusion in 1994 that N had an exceptionally strong attachment to the foster parents who were her psychological parents. He accepted the unanimous opinion of experts that N should only be moved if the move was necessary in her wider interests and he decided that she should live with the foster parents for the foreseeable future which, since she was under a disability, was likely to continue through her life. The 1994 order provided that the foster parents were at liberty to determine all questions of education, religion and upbringing for the child. Prior to the order the foster parents had scrupulously observed the Orthodox Jewish dietary and dress requirements as requested by the parents. On being granted a residence order, the foster parents obtained parental responsibility for her. The crucial decision by the judge to choose the foster parents as primary carers and to refuse to return the child to her natural parents was made when N was 4 and had already lived for the greater part of her life with her foster parents. It was, if I may say so, sensible of the parents not to pursue the appeal against the 1994 residence order since, on the face of the judgment, the decision appears to have been unappealable.

11. Events Between 1994 and 1998.

Difficulties having arisen in relation to contact after the residence decision, there was a hearing on contact arrangements on the 26th July 1996 before Wall J, when it appears to have been understood that there was no challenge to the 1994 residence order. The parents asked leave for N to be assessed by a distinguished Israeli psychologist, Professor Reuven Feuerstein who was an expert on Downs Syndrome, with a view to enhancing N’s development. The Official Solicitor was asked to report and to provide Professor Feuerstein with relevant papers. It thereafter became clear that the parents did intend to apply for an order to restore N to their care. Their application for leave for a further assessment to be made by Professor Feuerstein of N was adjourned. The judge found in the 1998 judgment that he had been misled as to the purpose of the intervention of Professor Feuerstein. Eventually a meeting was arranged by the Official Solicitor between Professor Feuerstein and Professor Sue Buckley, a psychologist who runs a clinic for Downs Syndrome children, to see N in both households and to assess her.

12. The 1998 hearing.

The variation application took six days with further extensive evidence. The judge heard the expert evidence, among others, of Professor Feuerstein, Professor Sacks, a child psychiatrist and Mrs Birnbaum, a chartered educational psychologist trained in Professor Feuerstein’s methods. All three had specialist knowledge of Down’s Syndrome children. The judge also considered the written report of Professor Buckley. The judge made findings of credibility which Mr Ryder QC, for the appellants, accepts this Court cannot go behind. In particular, the judge held that part of the evidence of Professor Feuerstein, despite his vast knowledge and experience, was partial and unhelpful and was outside the ambit of his expertise. Consequently his evidence has not been relied upon by Mr Ryder for the purpose of this appeal.

13. Professor Sacks was instructed by the Official Solicitor, acting for the child, to prepare a written report which the judge found to be poor and inadequate. He was cross-examined at length by Mr Horowitz QC then acting for the parents. The judge directed himself that he should approach Professor Sacks´ oral evidence with caution and examine his conclusions with great care. Having done so he found his oral evidence on material aspects of the case to be clear, trenchant and in places compelling. Professor Sacks dealt with the two main issues, and said in the conclusion to his written report:-

"The decision to move a child who has progressed so well, has integrated so well into her foster family and community, could only be justified if the reasons were overpowering.

I would suggest that it is not possible to demonstrate such overpowering reasons in this case."

He said in oral evidence:-

"The fact of real attachments is a very very real matter, but the mechanisms is much less dramatic shall I say than specific sensitive periods. It’s got to do with issues like prolonged exposure, prolonged interaction, which is concerned with things like: mutual trust, protection, emotional mutual responsiveness over long periods of time, those are the things that really matter......

the fact that people feel safe with each other, both at the parochial and an emotional level.

......multiple placements disturbs precisely the thing I was talking about, which is the development of long-term trusting relationships. If they keep being broken up all the time, that’s what causes the disturbance.

He was asked about the placement with the Cs:-

"The Cs have cared for N through thick and thin in a way that can be described for practical purposes, unconditionally and the fact that she is such a confident happy child and has done so well, is clearly the best testament to this."

Asked about the effects of a move to the parents he said:-

"Well, there is no doubt, well there is very little doubt, that she would find difficulties here. I think, probably the most important one, is that she would find difficulty in understanding what is going on, why somebody she had developed a trusting relationship with her, had abandoned her like this and I have to say that I am reluctant to predict here, because the pattern of responses is so wide, but children who are, I suppose the word is abandoned in this way often show the kind of thing that I actually mentioned in my report; they become withdrawn, they can show disturbed behaviour, they can be destructive, aggressive, rebellious, show sematic symptoms. A common one being nocturnal enuresis. If they become depressed, which is not uncommon, they can show the associated symptoms, both sematic and practical, but nobody I think can say which ones would happen."

Q. If it were explained to N, in age and understanding appropriate terms, that she had moved to live with her real mummy and daddy, what do you think her comprehension would be of that?

A. My personal opinion, is that she would find this very confusing and she might in fact interpret it in other ways, for example, she might feel that she is guilty for something or she is being punished in some way. It is very difficult to know these things, I think the concept of what is real, in terms of parenting, because this has been presented in sort of cultural terms, I think would have no significance for her at all. Parenting for her, means the things I’ve spoken about; that is parochial care, both practical and emotional.

Q. She would not be capable of making the sophisticated distinction between natural and foster parents?

A. I personally don’t think N is at that level at all. The question might arise as to whether what would happen if she were, because she might at that level, find it even more difficult to accept."

14. The evidence of the foster father was accepted in its entirety by the judge and carried great weight. Some short passages from his evidence help to explain the conclusions of the judge. Mr C was asked in evidence:-

Q. "If his Lordship were to decide that N must live with the Ps, what do you think would be the effect on N?

A. I must swear truthfully, devastating.

Q. Is this something you have thought about?

A. Night after night.

Q. In what way please?

A. Well, nobody would be able to explain to her what was happening, she would never ever understand and she would have to go through that time waking up and wanting to be somewhere she could never be again. This has kept us awake for months, night after night after night, turning it over, its been a nightmare."

He was asked about the effect of the proceedings which he described as ´horrible, terrible´:-

Q. "Because?

A. Because of the thought of losing N.

Q. What would the effect be on you if you lost N?

A. I just don’t know, because I couldn’t describe it, I don’t know.

Q. And on Mrs C?

A. The same.

He was asked if he could help in the transfer from the Cs to the parents:-

A. "I couldn’t do that.

Q. Because?

A. It’s just too much, it would be like tearing yourself to pieces bit by bit, and it couldn’t be done. N, she would never understand why she couldn’t come home. If she saw us again and

kept saying ....it would only make it worse, the distress.

....I could not help her move."

15. In a long, careful and comprehensive judgment, the judge began by restating the critical question which he posed in 1994:-

"In summary, N’s welfare is my paramount consideration. I have to have particular regard to the welfare checklist under section 1(3) of the Children Act 1989. The critical question remains as I posed it at page 19 of my judgment of 14th November 1994: does N’s welfare require the displacement of her right to be brought up by her parents in their religion and way of life?"

He set out the two critical issues before him in 1998 as:-

(1) N’s capacity to understand and appreciate her Jewish heritage and

(2) Issues of attachment and the risks inherent in a move.

Before turning to answer those two questions the judge looked at the position which had developed between 1994 and 1998. He found that the Ps had never accepted his 1994 decision or the reasoning behind it. He set out the consequences of that inability to accept his judgment which were relevant to the variation application. The parents were unable to appreciate the depth and strength of the relationship between N and the foster parents and the simple fact that the Cs now regard N as their own child. There had been a growing degree of mistrust between the two families, partly due to what the judge called the Ps´ rationalisation of the events leading to the November 1994 judgment. He found that their perception of the 1994 hearing was distorted in a number of respects, as was their view of the behaviour of the Cs whom they accused of betraying their trust. They sought to rewrite the history of N’s early years and to bring before the court a different set of facts from those found by the judge in 1994. They tended to blame others for the decisions which they made at the earlier stages. It was clear to him that they felt an enormous burden of guilt for agreeing in 1992 that N should be placed long term with a substitute family and for maintaining that stance until the summer of 1994. But they could not recognise how crucial that decision had been. They were very critical of the local authority’s role in arranging the foster care for N. The reasons they gave in 1998 for not being able to care for N in 1992 did not form part of the case advanced at the 1994 hearing. The judge was satisfied that they had recognised in 1992 that they did not have the capacity to care for N on a full time basis and it was clear to him they had not given N the ´unconditional acceptance´ described by Professor Feuerstein. The parents were critical of the experts called in 1994 and blamed their lawyers for the presentation of their case. The judge did not accept their retrospective rationalisation as correct.

16. The religious issue.

The judge said that two of the factors which had weighed with him in 1994 were the assessment of N’s likely development and the unanimous view of the experts that because of her disability she was unlikely to have any real perception of her Jewish heritage.

He reconsidered that assessment in the light of the expert evidence presented at the 1998 hearing. He was complimentary about the assessment of N’s current ability provided by Mrs Birnbaum. She formed the view that N would be able to achieve the level of understanding of a ten to twelve year old, in contrast to Dr Bamford who had previously assessed her future emotional and intellectual understanding at the level of an eight year old. Professor Sacks was critical of her assertion that N’s response to the religious input to education in the school curriculum, (at the mainstream school which she attended), demonstrated a level of understanding and consequent ability to participate in and appreciate a set of religious values and cultural milieu much higher than originally thought possible. The judge accepted the criticisms expressed by Professor Sacks of this part of her assessment and said at page 65:-

"Professor Sacks thus agreed with and endorsed the unanimous expert view in 1994 which I had incorporated in my November 1994 judgment, and which for ease of reference I repeat:-

N will never have any real appreciation of her Jewish heritage, and that her understanding of her religion will be limited to a rudimentary perception of God as Creator and as a Beneficent Being and that in addition she will have a capacity to participate in (and no doubt enjoy) certain rituals without any full understanding of their significance.

When I test Mr Horowitz´s examples against the available evidence of N’s current appreciation of religious issues (at the chronological age of over seven and a half), I am driven to the conclusion that Mrs Birnbaum’s assertions are unsupported by any evidence, and that Professor Sacks assessment is accordingly more likely to be correct."

The judge was satisfied that there was no credible evidence to persuade him that his 1994 assessment of N in the context of her understanding of her Jewish heritage was wrong and there were no grounds upon which he should change his view.

17. He was provided with a wealth of evidence provided on behalf of the parents about the philosophy and values of Orthodox Judaism and the capacity of Downs Syndrome children to participate in and benefit from Orthodox Jewish life. He accepted that there were particular benefits for Down Syndrome children in being brought up within a cultural and religious system which has firm structures and enjoyable routines with which such children can identify and in which they can join. He pointed out that the children described in some of the witness statements who had so clearly benefited had, unlike N, spent their whole lives in the devoted care of their parents, wider families and the Jewish way of life. That evidence did not cause him to doubt the findings he had made about N nor about her inability to appreciate or to understand her Jewish heritage.

18. Attachment of N to her foster parents.

The second main issue was the degree of attachment of N to her foster parents and the risks of a move in 1998 to her parents.

The judge dealt with the way in which N was presently being brought up by the foster parents and referred to a comment of Professor Sacks:-

"Her happiness is a reflection of the care which she has received in her life."

He concluded:-

"The evidence is therefore, in my judgment, overwhelming that N’s placement with the Cs has to date fully met all her needs and produced a lively energetic, happy child, who is doing well at school and is socially both competent and confident.”

The judge referred to the depth and strength of the relationship between N and the Cs in these words:-

“The aspect of this case which, in my experience renders it unique, is the quite extraordinary devotion with which the Cs cared for N during the time the tracheotomy was in place. In the interim judgment which I gave at the end of the 1994 hearing I said this:-

I am satisfied that due to her medical condition and the devoted care she has received from the Cs, N is attached to them with a strength and intensity which transcends the normal bond between parents and child.

My assessment of the strength and intensity of the attachment between N and the Cs was confirmed by the evidence which I read and heard during the current hearing. Once again I was impressed by the simple sincerity with which the Cs spoke of N and their love for her. Mr C put it simply and impressively when he said:

´she is my daughter: I’m her dad. It is something that has just evolved´; and Mrs C said with equal simplicity, force and sincerity:

´I never thought I could love anyone else’s child like I love N.´

I am equally in no doubt that over the period of more than three years since the last hearing the relationship between N and the Cs has been strengthened and confirmed. To the Cs, emotionally, she is their child. To be asked to give her up is to be asked to give away one of their own children."

The judge found that a consequence of that exceptionally close bond was that the Cs would not be able to participate in a structured and phased return of N to her natural parents nor to stay in touch with her if she was returned. To try to undertake a phased return would cause them such intense grief it would manifest itself to the child and increase the emotional harm she would suffer on the transfer. He said:-

" In my judgment, the Cs´ attitude to a handover and continuing contact thereafter is not selfish: it is a direct consequence of their unconditional acceptance of N as their child."

19. Risks of move.

The judge then considered the risks to N inherent in a move. He said:-

"In 1994 I was of the opinion, on the evidence available to me, that to move N carried not only the certainty of short term emotional harm but also a grave risk of both longer term emotional harm and a deterioration in her physical health. I remain of that view."

After recognising that, if N moved to her parents, she would be going to a warm and caring household, he then set out a number of factors that heightened the risk of long term emotional harm. They were: the inability of N to understand the move and the impossibility of explaining it to her; his view that the Cs would be unable to take part in a gradual transfer of N to her parents without intense grief which would manifest itself to the child; the necessity to change homes and schools, the two main pillars of her life, in rapid succession with the effect upon her emotional stability and educational progress. He relied strongly upon the oral evidence of Professor Sacks as to the problems of the move. He agreed with Professor Sacks that the arguments for leaving a thriving child in the environment in which she was thriving were overwhelming. He rejected the evidence of Professor Feuerstein to the contrary. Having applied the welfare checklist, he came to the firm conclusion that N should not be moved from the Cs and dismissed the variation application. He did not allow the foster parents to have N baptised in the Roman Catholic faith.

20. Three issues arise on appeal, residence, contact and requirement of leave to make a residence order under section 91(14).

Appeal on Residence.

This Court on appeal from the 1998 order is obliged to approach the case on the basis that Wall J’s decision in 1994 was correct. Therefore it is only if there have been significant changes or if the basis of the decision has been invalidated by subsequent findings that the appellants can succeed and this Court can interfere and set aside the 1998 order. Mr Ryder has not sought to suggest that the test formulated by the judge was incorrect or that he approached the case in the wrong way. He has submitted that the judge erred in his application of the relevant principles to the facts of this case. Mr Ryder raises a number of issues in respect of which, he asserts, the judge came to the wrong conclusion.

21. His argument can be summarised as follows:- a child has a presumptive right to be brought up by her own parents and in her own religion. That presumptive right can only be displaced by other compelling factors. On the question of the importance to N of her Jewish heritage, the expert evidence in 1998 reassessed N as more able than she had been assessed in 1994. There was now common ground between the experts that the 1994 evidence was unsound both as a description/prognosis then, and as a current picture of N as she is and will develop. Therefore there is the likelihood that she will have a far greater ability to understand, to appreciate and to enjoy her Jewish heritage than was expected. The 1994 assessment of her capacity has been invalidated by the subsequent expert evidence and the judge was wrong to have rejected again the proposition that her cultural and religious background was determinative of the case. Mr Ryder submitted a sophisticated argument that the judge had failed to distinguish between the concepts of understanding and appreciation of the Jewish faith and ritual. He also relied on the uncontradicted evidence of the benefits to N as a Downs Syndrome child which could be provided by her extensive family and the Jewish community, evidence to which the judge gave insufficient weight. He argued that the judge gave little weight to section 1(3)(d) of the Children Act which requires a judge to have regard to a child’s background and in that context he should have given great weight to her religious and cultural heritage.

22. On the issue of attachment and risk of moving N, Mr Ryder relied on Professor Sacks´ written report, that the concept of attachment was overrated. He pointed to the judge’s findings that the natural family was warm and loving, that N knew them and enjoyed her visits to them. They are capable parents and there is no criticism of them as potential carers. The child’s health has improved and there is no reason now why they cannot care for her. In balancing the short term trauma of the move and the long term benefits the factor of culture and heritage would shift the balance decisively in favour of the parents. Miss de Haas QC for the foster parents and Miss Birtles for the Official Solicitor supported the judge’s decision and reasoning.

23. The judge’s view of the case was that it was the most poignant he had ever had to try and that he had to deal with four entirely admirable and decent adults locked into irreconcilable differences over N’s future. I share the judge’s view that these four good people are placed in an impossible position but the welfare of N is the paramount consideration which takes precedence over the numerous issues raised on this appeal. The judge dealt at length and with the utmost care with the intellectual and, if I may say so, somewhat over-sophisticated arguments put forward to him, no doubt as they were to us, with force and emotion.

24. It is the first time this case has come on appeal to this Court although there has been litigation over this little girl of eight since 1992. Before dealing with the major submissions advanced by Mr Ryder it is important, in my view, to strip away the wealth of detail and look at N as a person and at the situation with which this Court has to deal. The first and crucial point is that the application which we are dealing with on appeal was a variation application and the primary issue of residence had already been decided in 1994. The next point is that this is a child with Downs’ Syndrome who will never have sufficient capacity to live her own independent life. She will always be dependent upon carers. Then we know that from the age of 17 months to eight and a half years she has lived with a couple whom she sees as her ´real´ or psychological parents. When she was four a court decided that she should spend her childhood with this couple. The evidence is that if she was now moved to a family, whom she knows from regular monthly contact but does not see as her ´real´ parents, she will not have the ability to understand why. At eight there have to be strong reasons to move any child who has inevitably put down strong roots from a family where she has lived for seven years. The sometimes overemphasised status quo argument has real validity in this case. For this child, with limited capacity to understand, the reasons to move have, in my view, to be even more cogent. There is no presumption in the statutory code of the Children Act which can displace section 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 parents 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?

The reasons put forward by Mr Ryder nonetheless deserve careful attention.

25. Religion.

In considering the relevance and importance of the religious element in this appeal, I agree with Mr Ryder that section 1(1)(d) of the Children Act which requires a court to have regard to the background of a child includes a child’s religious and cultural heritage. It is a relevant consideration, the weight of which will vary according to the facts of each case. In the present case, it is an important factor. No-one would wish to deprive a Jewish child of her right to her Jewish heritage. If she had remained with a Jewish family it would be almost unthinkable, other than in an emergency, to remove her from it. I have no doubt, like the judge, that the Orthodox Jewish religion provides a deeply satisfying way of life for its members and that this child, like other Downs Syndrome children, would have flowered and prospered in her Jewish family and surroundings if she had continued to live with them. But in the unusual circumstances of this case her parents were not able to accommodate her within her community. The combination of the family illness and difficulties together with N’s real medical problems as a young child made it impossible for her to be cared for within her family circle and it was then, not now, that she was deprived of her opportunity to grow up within the Jewish community. The uncontradicted evidence of the way Downs Syndrome children are cared for in the Orthodox Jewish community, which I do not doubt for a moment, is not relevant to the issue whether N can move.

26. The judge, faced with contradictory evidence about N’s capacity to understand and appreciate the Jewish religion, rejected the partisan evidence of Professor Feuerstein, and accepted the evidence of Professor Sacks as to her limited ability. With enormous care he considered all the evidence and the advantages to N of a return to her family culture and his carefully reasoned conclusion on the first issue cannot, in my judgment, be attacked. This Court cannot go behind his findings. The undoubted importance for an Orthodox Jew of his religion which provides in itself a way of life which permeates all activities, is a factor to be put in the balancing exercise, particularly in considering the welfare of the daughter of a Rabbi. But N’s religious and cultural heritage cannot be the overwhelming factor in this case for the reasons set out by the judge nor can it displace other weighty welfare factors.

27. Attachment and Risks of Move.

I turn now to the issues of the degree of attachment and the risks of a move. At the conclusion of this long drawn out and very sad case it seems to me that the position really is this. In 1991 for understandable reasons, elaborated at length, the natural family could not cope with a Downs Syndrome child with severe associated respiratory problems. They in effect ´rejected her´ and in due course were prepared to agree to her being adopted and placed in a permanent substitute family. The opinion expressed by Professor Feuerstein that the natural family had given N "unconditional acceptance" was patently incorrect and indeed absurd. The tragedy in this case for all parties is that it was impossible to find within a reasonable period of time, a suitable Orthodox Jewish family. I have little doubt that if N had been placed within the Jewish Community in 1993, there would have been no proceedings in 1994 or in 1998. The combination of the placement, through no fault of anyone, with the Cs, a Roman Catholic family, together with the way in which N has developed into an attractive and affectionate little girl whom the natural family has grown to know and to love, has fuelled these applications and the present appeal. Indeed, Mr Ryder has frankly said that the overriding consideration on this appeal is the loss of her Jewish birthright.

28. The evidence of the exceptional attachment of N to her foster parents and of them to her is overwhelming. The evidence of the harm to her, and not just short term harm, of a move is also overwhelming. Her perception of the foster parents as her real parents, her inability to understand why she would lose them and the reasons for the move, the impossibility of a structured and gradual hand-over, the adjustment to the new home where she has not lived since a baby, the move from school as well as home, the two pillars of her security, are powerful reasons against a move. This Court cannot intervene in a child case where the judge has exercised his discretion, unless the judge was plainly wrong or has erred in his approach to the case. But in this case, having read all the papers and heard all the arguments, in my judgment, he was plainly right. I suspect that if the religious dimension had not been so predominant and the question was asked:- ´do we move this child?´ the answer would have been given very quickly:- ´of course not.´ It is patently obvious that this child cannot move and the balance falls firmly and clearly on the side of refusing the variation application.

29. Contact.

The judge gave an interim judgment in 1998 before his final judgment and allowed an interval in order to give the parties time to come to terms with his decision and with the hope that they might be able to agree the level of contact for the future. That agreement proved impossible to achieve and the judge was faced, in the submissions, with three possible alternatives: terminate direct contact; order regular and frequent contact; order contact three or four times a year. The Official Solicitor, following the opinion of their expert, Professor Sacks, submitted that there should be no direct contact. The natural parents sought a continuation of the existing contact of once every four weeks. The foster parents asked that it should be reduced to three times a year.

30. The pattern of contact had over the years been weekly until September 1995, when the parents asked for it to be quarterly. They changed their minds and it became fortnightly until May 1996 when it became three weekly. In September 1996 the contact order was four weekly. Despite the submissions from the Official Solicitor to the contrary, the judge concluded that it was not in N’s best interests to terminate contact. He then considered the degree of contact that there should be between the child and her natural parents. He agreed with Professor Sacks that:-

"the success of future contact depended critically upon two linked factors. The first was a recognition by the P family that N’s permanent home is with the C family, and that is what the court has decided in her best interests. The second and linked factor was the need for the Cs to be free from the fear that contact is the prelude to a further application to vary the residence order.

"The purpose of the visits by N is, accordingly, to maintain a link with her natural family and to enjoy the company of her parents, siblings and cousins. If the Ps cannot accept that this is the regime which is to operate for the indefinite future, then contact is likely to remain stressful for the adults and increasingly, to become so for N, and may thus well need to be curtailed or terminated."

31. The judge found that the current four weekly contact appeared to have been beneficial for N. He also found that the Ps were unable to acknowledge that for the foreseeable future N’s home was with the foster parents. Consequently the parents had put forward nothing to counterbalance the anxieties of the Cs that contact might be a prelude to a further application to vary residence nor to lessen the feelings of insecurity about N’s placement with them and the pressure they felt had been placed upon them. This evidence of insecurity and pressure was clearly demonstrated in the oral evidence given by the foster parents. The judge therefore concluded that the contact with her natural family must be at a level with which the C’s felt comfortable. He accepted their view that they could not cope with contact on a four weekly basis. He said:-

"Although I am basing my decision on contact on the adults´ reactions, feelings and wishes and not those of N, I have not lost sight of the fact that contact is a welfare issue in which N’s interests are paramount. This, however, in my judgment, is a case in which her welfare is crucially dependent on the welfare of her carers........

whilst I do not resile from the proposition that the P family represent an inescapable part of N’s existence, it does not follow, in my judgement, that "sustained contact in depth is required" to maintain the link between N and her natural family, particularly if the price to be paid for it is deep anxiety and continuing stress felt by her carers."

He made an order for contact of four times a year with other directions for indirect contact.

32. Before this Court, Mr Ryder submitted that the judge erred in principle in his approach to contact and the weight that he gave to the relevant factors. He asked this Court to make an order for contact considerably in excess of that asked for at the trial. The application before this Court is for weekly contact for the foreseeable future. Mr Ryder made it clear that the natural parents still would be unable to accept or come to terms with the child remaining with the foster parents. He candidly disclosed that they retain the hope that at the age of eighteen, if N is of sufficient ability to make choices, she would then choose to go and live with them. Mr Ryder’s argument for frequent regular contact is based on the finding of the judge that the P family represents an inescapable part of N’s existence and he submits that contact reduced to four times a year does not give N sufficient opportunity to take advantage of contact which is enjoyable and beneficial. He questions whether the concerns of the foster parents are relevant considerations to be put into the balance and points out that there is no evidence that their concerns have had any adverse effect on N or are likely to have an adverse effect in the future.

33. On the issue of contact also this Court may not interfere unless the judge erred in the exercise of his discretion. So far from being plainly wrong, I am entirely satisfied that the judge was plainly right to reduce the level of contact to four times a year. In any case where natural parents are unable to come to terms with their child being placed elsewhere and retain the hope that she may return to them at some time, there is the real possibility that the placement may be disrupted by frequent visits. Contact must not be allowed to destabilise the primary importance, for the child, of securing the stability of the child’s permanent home.

34. In the present case there are several factors which give rise to considerable concern. The child will need to be cared for for the rest of her life. Her present carers have already demonstrated deep anxiety and have been placed under considerable stress. Regular weekly contact might well give the parents the opportunity to try to encourage her to live with them when she is an adult. More important however, even if the parents exercise great restraint and do not, consciously or unconsciously, encourage her to want to live with them, the foster parents and their family will inevitably be placed under increasing strain for the rest of her minority. They have committed themselves to her care for their life time but have understandable concerns that the placement of N in their family may be undermined by contact, although to their credit they have not sought to terminate it. Although N has not yet, it appears, been adversely affected by the contact, if the primary carers remain in a situation of stress which may occur with frequent contact, it may affect N as she gets older and has greater understanding of her situation.

35. The judge was clearly right to put the stability of the placement of N as the most important factor in her future welfare. He had clear evidence upon which to conclude that frequent contact would place an unacceptable strain on that placement. He was satisfied that N would retain a sufficient recollection of her parents over a three month period and that sustained contact was not required to achieve its purpose of retaining the link with them. I would only add that the present application to increase contact from monthly to weekly demonstrates a complete failure by the natural family to understand the concerns of the foster family and the reasoning of the judge. The very fact of making the revised application for weekly contact only reinforces the wisdom of the judge’s decision.

36. Leave under Section 91(14).

In Part III of his careful and comprehensive judgment, Wall J set out the relevant case law on the use of the section 91(14) provision and extracted a number of propositions from those cases to which I shall refer later. It is, as always, wise to begin with the wording of the section and for the Court to remember that an appellate court can explain but cannot restrict the wording of the statute. Section 91(14) states:-

"On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court."

The statutory power to restrict applications by parents was introduced by the Children Act 1989 from the 14th October 1991, although similar orders had previously been made under the inherent jurisdiction of the court. Before the Children Act was in force, this Court in re H (Child Orders: Restricting Applications) [1991] FCR 896 approved a restriction made on both parents by the trial judge. I said at page 899:-

" In my judgment, the power of the court to restrict applications by parties in the exercise of the court’s inherent jurisdiction should be used sparingly. There are occasions where applications are being made too often and where the other party and the child are seen to be suffering from them, or are likely to suffer if such applications continue. It is then desirable that the court should put that barrier in place and restrict the opportunity to make needless and ineffective applications. The sort of case I have particularly in mind is that of a father who been denied access so that there is no access at all; or indeed that of a father who has had an order for custody to the mother after a full hearing, who goes ahead and applies to vary that order to himself in circumstances where there is no prospect of success. Such applications are undoubtedly detrimental to the child and are a waste of public money and a waste of the court’s time; however they may fall short of a man or woman being seen as a vexatious litigant. There may be two stages here. It is a very useful weapon in the court’s arsenal to keep litigant’s in family matters, who are carried away by an excessive view of the case or by excessive bitterness, from taking up the time of the court and upsetting the other family. It is not, in my judgment, a run of the mill type of order, nor should it generally be used in that fortunately a minority but nevertheless substantial minority of cases where the bitterness between the parties inevitably is detrimental to the child."

The reasoning for the decision in re H (supra) was applied by Sir Stephen Brown P. to a section 91(14) application in F v. Kent County Council and Others [1993] 1 F.L.R. 432 at page 438 in which he sat aside the restriction imposed by the magistrates. This Court supported a time limit of three years imposed by the trial judge in re T (A Minor)(Parental Responsibility: Contact) [1993] 2 F.L.R. 450. In re N (Section 91(14)(Order) [1996] 1 F.L.R. 356,

Hale J said at page 360 that leave should not be granted lightly and should generally be granted inter partes.

37. In the majority of reported cases which have come before the High Court and this Court, the purpose of imposing the leave restriction has been to control a litigant in family proceedings who has been making repeated and unreasonable applications or is likely to be acting unreasonably in the future. In B v B (Residence Order: Restricting Applications) [1997] 1 FLR 139

I again said at page 145:-

"It is a very useful weapon in the arsenal of judicial weapons. It must not be made unless there is a clear basis on evidence for doing it. It is a power which the court should exercise with great care and sparingly, because it is inevitably denying to a party his inalienable right to bring proceedings in the court and to be heard in matters which affect his children."

Waite LJ said at page 146:-

"Tucked away though it may be as one of the 17 subsections of a section whose general purpose is largely administrative, the power under s 91(14) to forbid future applications without leave of the court represents a substantial interference with the fundamental principle of public policy enshrined in our unwritten constitution that all citizens enjoy a right of unrestricted access to the Queen’s courts.

The test that I would favour involves reading s91(14) in conjunction with the first and most important provision in the Children Act, s1(1), which makes the welfare of the child the court’s paramount consideration when determining any question with respect to the child’s upbringing.

The judge must therefore, ask him- or herself in every case whether the best interests of the child require interference with the fundamental freedom of a parent to raise issues affecting the child’s welfare before the court as and when such issues arise."

Situations do however arise where the welfare of the child may require the imposition of the leave requirement and in several cases the restriction has been imposed pre-emptively. In re Y (Child Orders: Restricting Applications) [1994] 2 F.L.R. 699 the local authority applied for a restriction after the dismissal of a hopeless application made by the father. Making the section 91(14) order Thorpe J said, at page 703, that the earlier reported cases all involved within the history a thread of repeated and near vexatious applications to the court:-

"That element is lacking in this case. The original care order contains the provision for contact in the exercise of the local authority’s discretion. Therefore this is the first application brought by the father to fail. Thus within the history the element of too frequent applications is completely absent.

Despite that, it seems to me that where the circumstances are as extreme as in this case, where the children’s needs are so great, where the risks and uncertainties overhanging the future therapeutic programme are already magnified, it is important in their interests that at least the risk of unnecessary continuing disturbance by repeated or revived litigation should be excluded by a clear introduction of a filter that will prevent the inception of further litigation by the applicant without satisfying a judge of the Division that there is a prima facie case meriting investigation."

The Court of Appeal in re W (Minors) (Sexual Abuse) [1994] 1 F.L.R. 419 made an section 91(14) restriction, (although refused by the trial judge) on the basis that if the father or paternal grandparents made an application it might well be detrimental to the stability of the children’s present placement. They were severely damaged children living with long term foster parents. In C v W (A Minor)(Contact: Leave to Apply) [1998] 1 FCR 618. Hale J, dismissing an appeal from the Family Proceedings Court, held that other exceptional circumstances might justify the making of a section 91(14) order as where a parent sought to pursue litigation in an unreasonable fashion and in a fashion which was damaging to the interests of the child.

39. In re C (A Minor) (Unreported: Transcript, CA: 18th February, 1998), a boy of seven was being cared for by friends of the mother. The couple also gave a great deal of support to the mother who was a manic depressive. The father himself suffered from psychological problems and had no direct contact with the child, although there was an order for indirect contact of which he had not availed himself. On a further application by the father for contact, the Recorder made a section 91(14) order. In dismissing the application for leave I said (transcript page 8):-

"Although I set out in B v B (page 145) that this sort of order was not to be made "unless that parent has crossed the line from making application" etc., every judgment of every court has to be subject to the overriding statutory framework of the Act. I would not like that judgment of mine to be seen as excluding the exceptional case and it cannot exclude section 1 of the Children Act. If I am to be taken as excluding the exceptional case, then I say loud and clear in this case, I was wrong, but I do not for one moment think that that is what I was doing. I was looking at the sort of case that normally comes before the court. This, in my view, is a very exceptional case. Here is a little boy who has the good fortune to be cared for by a devoted couple who are supporting him and in supporting him they are supporting his mother who has grave psychiatric problems. The Recorder in this case talked about the mother clinging on during the current proceedings and of signs that the stress and strain of the proceedings were causing her considerable difficulties. The judge who heard a two day contested hearing, came to the conclusion that this was such a case and despite it not coming within the standard criteria......came to the conclusion that this child’s welfare required this order to be made. .....anything which is going to cause a significant deterioration in the fragile mental stability of the mother is of enormous importance to the child and comes directly within section 1(1) that the child’s welfare is the paramount consideration of the court who has to deal with it."

The leave restriction was imposed in an unusual situation in re M (Adoption or Residence Order) [1998] 1 F.L.R. 570 to safeguard the security of the placement of a child of 11 with a couple who wished to adopt her but where the majority of this Court held that the refusal of agreement to adoption by the mother was not unreasonable.

40. There is no guidance in the section as to the circumstances in which the restriction may be imposed in a Children Act application. Such an omission, is, no doubt, intentional and designed to give the court a wide discretion. Contrast the language of section 42 of the Supreme Court Act 1981 which requires the Attorney General to show that the litigant has habitually and without reasonable ground instituted vexatious proceedings before the court can impose any restriction. From the cases which I have cited above, it can be seen that the most likely reason for granting a restriction requiring leave to make an application is where the applicant has already made repeated and unreasonable applications with no hope of success. In those cases the applicant must have crossed the line between a reasonable application and one which is both unreasonable and has become or is becoming oppressive. The operation of the section is not however limited to oppressive or semi-vexatious applications. Orders have been made pre-emptively to apply to cases where the conduct of the applicant has not yet reached that level or there is no criticism of the applicant’s conduct but nonetheless there are circumstances where, in the best interests of the child, it is necessary to prevent unmeritorious inter partes applications. It is always a balancing exercise between the welfare of the child and the right of unrestricted access of the litigant to the court.

41. A number of guidelines may be drawn from the cases to which I have referred above, and I am also indebted to Wall J for the helpful summary of propositions set out in Part III of his judgment. It is however important to remember that these are only guidelines intended to assist and not to replace the wording of the section.

Guidelines

1). Section 91(14) should be read in conjunction with section 1(1) which makes the welfare of the child the paramount consideration.

2). The power to restrict applications to the court is discretionary and in the exercise of its´ discretion the court must weigh in the balance all the relevant circumstances.

3). An important consideration is that to impose a restriction is a statutory intrusion into the right of a party to bring proceedings before the court and to be heard in matters affecting his/her child.

4). The power is therefore to be used with great care and sparingly, the exception and not the rule.

5). It is generally to be seen as an useful weapon of last resort in cases of repeated and unreasonable applications.

6). In suitable circumstances (and on clear evidence), a court may, impose the leave restriction in cases where the welfare of the child requires it, although there is no past history of making unreasonable applications.

7). In cases under paragraph 6 above, the court will need to be satisfied first that the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the Court and the all too common situation where there is animosity between the adults in dispute or between the local authority and the family and secondly that there is a serious risk that, without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain.

8). A court may impose the restriction on making applications in the absence of a request from any of the parties, subject, of course, to the rules of natural justice such as an opportunity for the parties to be heard on the point.

9). A restriction may be imposed with or without limitation of time.

10). The degree of restriction should be proportionate to the harm it is intended to avoid. Therefore the court imposing the restriction should carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained and the duration of the order.

11). It would be undesirable in other than the most exceptional cases to make the order ex prate.

42. An absolute prohibition on making any application to the court, would not in my view be an order under section 91(14), which presupposes an (ex prate) application to the court. An order imposing an absolute prohibition would have to be made under the inherent jurisdiction of the court, see re R (Residence: Contact: Restricting Applications) [1998] 1 F.L.R. 749, per Wilson J at page 760.

43. It was suggested to us that section 91(14) may infringe the Human Rights Act 1998 and the European Convention, Article 6(1), by depriving a litigant of the right to a fair trial. I do not consider that submission to be correct. The applicant is not denied access to the court. It is a partial restriction in that it does not allow him the right to an immediate inter partes hearing. It thereby protects the other parties and the child from being drawn into the proposed proceedings unless or until a court has ruled that the application should be allowed to proceed. On an application for leave, the applicant must persuade the judge that he has an arguable case with some chance of success. That is not a formidable hurdle to surmount. If the application is hopeless and refused the other parties and the child will have been protected from unnecessary involvement in the proposed proceedings and unwarranted investigations into the present circumstances of the child.

44. The application of the section 91(14) guidelines to the appeal.

This is clearly not a case where the parents have made repeated and unreasonable applications. It is nonetheless a case where the emotions run extremely high and the parents have an added religious dimension to the incentive to get the child back to them. They were unable to accept the decision in 1994 and the decision in 1998. There is no reason to suppose that they will accept the decision of this Court. They have been unable to indicate that they will not make a further residence application. They have asserted in their evidence and through their Counsel on this appeal their fervent belief that N’s home is with them and within the Orthodox Jewish community. She was born a Jew and remains a Jew wherever she may live and however she may be brought up. Her placement with the foster parents is, as I have already set out under the part dealing with contact, unacceptable to them and they seem unable to recognise that this issue is decided and cannot be relitigated. They are pledged, and it would seem, being encouraged to pursue all means of ensuring her return to them, even, as I have already set out, after she is 18. In those circumstances, the strain which is already taking its toll of the foster parents, is unlikely to be eased by the residence order unless they are given the maximum assistance by the court to ensure peace and stability in the placement of N with them for the rest of her minority. Wall J said, with great force, that the litigation over N’s residence must now come to an end. 10 months later the need for finality is even more important. The judge also described the current round of litigation as:-

"corrosive of the adult relationships and contrary to the interests of the child. I am satisfied that the stress on all the parties, but particularly on the Cs, has been intense. I am as satisfied as I can be that future litigation over residence is contrary to the interests of N and is to be avoided if humanly possible. The court simply cannot permit the parties, in N.’s interests, to subject themselves for a third time to such corrosive tension".

I respectfully agree. In the highly charged atmosphere of this case and with the clear evidence of the impact of the litigation so far on the Cs, this is, in my judgment, a clear case for imposing a section 91(14) restriction on the parents, in the interests of the child, in respect of future residence applications and without limit of time. They will of course have the right without restriction to make suitable applications for any variation of contact.

45. I should finally like to pay tribute to the care, sensitivity and compassion with which the judge has dealt with this case on each occasion. I should also like to say that the parents in their distress and turmoil have used strong language about the foster parents including suggesting they have been guilty of a betrayal of trust. This is clearly untrue and the foster parents should be commended for their unstinting devotion to the child and for coping with the anguish which they also have experienced through these prolonged proceedings with the fear they might lose N which they have never allowed to affect the child.

I would dismiss the appeal.

LORD JUSTICE WARD:

I agree that this appeal should be dismissed for the reasons given by my Lady. I desire to add these few words because this appeal raises an important issue as to how religious beliefs and practices are to be taken into account by the court in deciding whether or not to make a “residence order” under Section 8 of the Children Act 1989, that is to say an order which settles the arrangements to be made as to the person with whom the child is to live. The answer to that question is of crucial importance, first and foremost, to the child concerned; inevitably also to the parents of the child and to those who care for her; and, in this case, so we are told by Mr Ryder Q.C., to the Orthodox Jewish community across the world. Given that wider interest in this judgment, it may be useful to begin by stating some propositions, which, though basic, are nevertheless fundamental and so explain the duty of the court and the constraints upon it. The principles are:

1. The court is being asked to determine a “question with respect to the upbringing of a child”: hence, by operation of Section 1 (1) of the Children Act “the child’s welfare shall be the court’s paramount consideration.” The duty of the court is to give effect what is best, overall, for the child. Considerations of welfare dictate the decision.

2. This is an appeal from the order made on the parents’ application to vary an existing residence order. The circumstances are within Section 1 (4) (a) of the Children Act because:-

"the court is considering whether to make vary or discharge a Section 8 order, and the making, variation or discharge of the order is opposed by any party to the proceedings”. (Emphasis added.)

Consequently the so-called checklist applies pursuant to Section 1 (3) of the Act:

"In the circumstances mentioned in subsection (4), a court shall have regard in particular to -

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b) his physical, emotional and educational needs;

(c) the likely effect on him of any change in his circumstances;

(d) his age, sex, background and any characteristics of his which the court considers relevant;

(e) any harm which he has suffered or is at risk of suffering;

(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting those needs;

(g) the range of powers available to the court under this Act in the proceedings in question." (Emphasis added).

I have emphasised the words “ in particular” to show that the list is not exhaustive. 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. I added the emphasis to the word “ background” because, again as a matter of common ground, it is under that heading that religion is introduced. The fact that elsewhere in the Act - e.g. section 22(5)(c) - and in section 7 of the Adoption Act, religious persuasion and religious upbringing are made express objects of consideration does not lead to any implication that religion is of any lesser significance when considering whether or not to make a residence order. Religious beliefs must not be devalued.

3. “Welfare” is not defined in the Children Act but there is no better formulation of the scope and meaning of welfare being the paramount consideration than was given by Lord MacDermott in J. -v- C. [1970] AC 668, 710/711:-

"I think (these words) connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare as that term has now to be understood."

That case was a cause celebre , the facts of which make interesting (but not compelling) comparisons. I take them from the headnote:-

"The infant, a boy, was born in England of Spanish parents in May, 1958. Because of his mother’s illness he was taken care of from the age of four days by English foster parents in their home. From April, 1959, he lived with his parents in England and when in February, 1960, they returned to Spain, he went with them. His health suffered in Spain and in July, 1960, after he had been with his parents for 17 months in all, at the parents’ request he returned to England to stay with the foster parents for a visit of indefinite duration. He had remained with the foster parents ever since, being brought up by them with their own children but in the Roman Catholic faith, the faith of his parents. In 1963, after the parents had asked for his return, the infant was made a ward of court and when the matter came before the judge in 1965 it was ordered that care and control be committed to the foster parents, and that he be brought up in the Roman Catholic faith and in the knowledge and recognition of his parents and knowledge of the Spanish language. In 1967, for educational reasons, the foster parents asked that the infant might be brought up in the Church of England faith, and subsequently the parents issued a summons asking for the custody, care and control of the infant.

At the time of the hearing the infant was 10 years old. His parents lived in a suitable modern house in Spain: his father was in good employment and his mother’s health restored. It was not disputed that they were in no way unfitted to have the care and control of the infant. The foster parents had six children: it was a good home and a happy and united family with which the infant had become well integrated. There was medical evidence that in view of his relationship with the foster parents as parental figures, and with the other members of the family, the chances that he would make a successful adjustment in Spain were slight and that if he did not the consequences for his future emotional stability and happiness were grave. The judge accepted that as a general proposition it for the welfare of a child to be in the custody of unimpeachable parents and were it not for the dangers of adjustment to life in Spain would have made the order for which the parents asked; but he considered there was no reasonable prospect of such adjustment and that a return to Spain would be disastrous for the infant and made no order on the parents’ application. The Court of Appeal affirmed his decisions."

The House of Lords dismissed the parents’ further appeal.

The case is known as “the blood tie baby case.” The appeal before us is another such case but here the primary contention is that by the tie of blood the further knot of religion is firmly attached to N. At the heart of the appellants’ submission is their conviction that the knot should also bind the court. There in lies their error: religion is but one factor - though I do not doubt that it may be a weighty factor - to be placed in the scales which, when the balance is struck, will determine what N’s welfare demands. Thus it is submitted that N’s birthright is to be Jewish and to live her life in the practice, enjoyment and ultimate fulfilment of her Jewish faith. I accept that as her birthright. She is and will forever remain a Jew in this life and hereafter whatever this court may determine. On her behalf her parents claim her divine right to fulfil her potential in life. That life is the Jewish life where every facet and detail of daily living is part of the ritual of religious observance. They assert through Mr Ryder’s skeleton argument that:-

"The soul is prejudiced by any denial of spiritual nutrition provided by the purpose to which the body is put by the individual."

I recognise the intensity of their conviction that, for them, N’s Jewish upbringing and religion is paramount. That begs the question whether it is the paramount factor in determining her welfare.

4. That children have rights is acknowledged in International Conventions ratified by the United Kingdom. They may not have the force of law but, as international treaties, they command and receive our respect.

Article A 14 of the United Nations Convention on the Rights of the Child adopted on 20th November 1989, provides:-

"1. States Parties shall respect the right of the child to freedom of thought conscience and religion.

2. States Parties shall respect the rights and duties of the parents...to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.

3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety by law and are necessary to protect public safety, order, health or morals, or the fundamental human rights and freedoms of others."

It also provides that:-

"Article 3.1: In all actions concerning children ... the best interests of the child should be of primary consideration."

The European Convention on Fundamental Human Rights and Freedoms is to similar effect. Article 9 provides that:-

"1. Everyone has the right to freedom of thought, conscience and religion...

2. Freedom to manifest one’s religion and beliefs shall be subject only to such limitations as are prescribed by law and are necessary in democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."

Those articles were considered by the European Court of Human Rights in Hoffmann -v- Austria [1994] 17 E H R R 293, a case concerning the Jehovah’s Witnesses. The majority of the European Court held as follows:-

"In assessing the interests of the children, the Supreme Court (of Austria) considered the possible effects on their social life of being associated with a particular religious minority and the hazards attaching to applicant’s total rejection of blood transfusions not only for herself but - in the absence of a court order - for her children as well; that is, possible negative effects of her membership of the religious community of Jehovah’s Witnesses. It weighed them against the possibility that transferring the children to the care of their father might cause them physiological stress, which in its opinion had to be accepted in their own interests.

This court does not deny that, depending on the circumstances of the case, the factors relied on by the Austrian Supreme Court in support of its decision may in themselves be capable of tipping the scales in favour of one parent rather than the other. However, the Supreme Court also introduced a new element, namely the Federal Act on the Religious Education of Children. This factor was clearly decisive of the Supreme Court. The European Court therefore accepts that there has been a difference in treatment and that the difference was on the ground of religion; this conclusion is supported by the tone and phrasing of the Supreme Court’s consideration regarding the practical consequences of the applicant’s religion.

Such a difference in treatment is discriminatory in the absence of an “objective and reasonable justification” that is, if it is not justified by a “legitimate aim” and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised."

The aim pursued by the judgment of the Supreme Court was a legitimate one, namely the protection of the health and rights of the children."

In other words, in the jurisprudence of Human Rights, the right to practice one’s religion is subservient to the need in a democratic society to put welfare first.

5. So it is here. That was confirmed by the House of Lords in In Re K. D. [1988] 1 A.C. 806, where Lord Oliver of Aylmerton said at p. 825:-

"The word “right” is used in a variety of different senses, both popular and jurisprudential. It may be used as importing a positive duty in some other individual for the non-performance of which the law will provide an appropriate remedy, as in the case of a right to the performance of a contract. It may signify merely a privilege conferring no corresponding duty on anyone save that of non-interference, such as the right to walk on the public highway. It may signify no more than the hope of or aspirations to social order which will permit the exercise of that which is perceived as an essential liberty, such as, for example, the so called “right to work” or a “right of personal privacy.” (I interpose and add “a right to practice one’s parents’ religion.”) “Parenthood, in most civilised societies, is generally conceived of as conferring upon parents the exclusive privilege of ordering, within the family, the upbringing of children of tender age, with all that entails. That is a privilege which, if interfered with without authority, would be protected by the courts, but it is a privilege circumscribed by many limitations imposed both by the general law and, where the circumstances demand, by the courts or by the authorities upon whom the legislature has imposed the duty of supervising the welfare of children and young persons. When the jurisdiction of the court is invoked for the protection of children the parental privileges do not terminate. They do, however, become immediately subservient to the paramount consideration which the court has always in mind, that is to say, the welfare of the child."

Those are the basic principles which must inform the court’s approach.

Wall J. was well aware of these principles. He gave effect to them. No criticism can be made of the way he directed himself namely:-

"In summary, N’s welfare is my paramount consideration. I have to have particular regard to the welfare check list under section 1(3) of the Children Act 1989. The critical question remains as I proposed it at page 19 of my judgment of 14th November 1994: does N’s welfare require the displacement of her right to be brought up by her parents in their religion and way of life?”

Mr Ryder’s challenge is as follows, to quote again from his skeleton argument:-

"It is submitted that the learned judge was also plainly wrong on the facts in three respects:

(a) he took insufficient account of the wealth of uncontradicted evidence as to the benefit to N as a Jew, as a Downs Syndrome sufferer and as a “child for life” which would be provided by her natural family and the wider community, and

(b) he insufficiently differentiated between his 1994 findings and the evidence which was before him in 1998 both as to

(i) N’s level of understanding and

(ii) as to the risk of harm should N be separated from the care of her foster carers."

Dealing with the benefits to N of a Jewish upbringing, Mr Ryder submits that the judge erred firstly, in his assessment of the benefits subjectively to be enjoyed by N, secondly in the benefits objectively assessed and thirdly in the denial of the benefits to the child because she could not fully understand or appreciate them. I reject the criticisms.

When looking at the matter subjectively, the judge dealt principally with N’s level of understanding. This was the central issue of the case. It was necessary for the applicants to show a substantial change in the earlier assessment of her understanding in order to justify the variation they sought. It was to that end that the evidence was mainly directed. The evidence threw up a conflict. Mrs Birnbaum concluded that:-

"her level of understanding and consequent ability to participate in and appreciate a set of religious values and cultural milieu must also be much higher than originally thought possible."

She concluded that N’s level of understanding was more like a 10 to 12 year old than the 8 year old which was the 1994 assessment. The evidence of Professor Feuerstein, eminent though he is, was held by the judge to lack objectivity and it is impossible for this court to say that the judge was plainly wrong to reject his main opinions. On the other hand the evidence of Professor Sacks, though it was treated with caution, eventually prevailed.

The judge’s conclusion was:-

"There is, therefore, in my judgment, no credible evidence in 1998 which comes anywhere near persuading me that the assessment of N which I made in this context in 1994...was wrong: indeed, I have to say that the evidence available in this hearing has, if anything, confirmed it."

His 1994 conclusion with which Professor Sacks had agreed was that:-

"N will never have any real appreciation of her Jewish heritage, and that her understanding of her religion will be limited to a rudimentary perception of God as a Creator and as a Beneficent Being and that in addition she will have a capacity to participate in (and no doubt enjoy) certain rituals without any full understanding of their significance."

The judge was entitled to accept the evidence of Professor Sacks in preference to the evidence tendered by the applicants. He was certainly not plainly wrong to do so. Even if N is functioning or capable of functioning at the level of 10 to 12 year old, as opposed to an 8 year old, that improvement, significant though it is for N, does not alter the essence of the finding of the level of benefit subjectively to be enjoyed by N.

The next submission that the judge failed to take the objective benefits into account is simply not born out by the judge’s own words. He said:-

"I would not want it thought that in reaching my decision on this part of the case I had failed to take into account or overlooked the impressive volume of evidence filed on behalf of the P’s dealing with the philosophy and values of Orthodox Judaism, and the capacity of Downs Syndrome children to participate in and benefit from Orthodox Jewish life."

Later he said:-

"The evidence also confirms the structure and benefits of the Orthodox Jewish way of life. But none of it causes me to doubt the findings which I have made about N; or about her inability to appreciate her Jewish heritage; or her lack of understanding of the Jewish religion beyond that which I set out in the ...1994 judgment."

Mr Ryder’s criticism of the judge’s failure to take sufficiently into account the benefits to N as a Downs Syndrome sufferer is also refuted by the terms of his judgment. He made reference to the volume of evidence directed to that very point. He said:-

"I mean no disrespect to this very substantial body of impressive evidence if I say that it confirms the impression which I formed in 1994...that there are particular benefits for Downs Syndrome children in being brought up within a cultural and religious system which has firm structures and enjoyable routines with which such children can identify and in which they join. I have no doubt that the Downs Syndrome children described in the witness statements I have read are as they are described. But they are not N and have, as I understand the statements, spent their whole lives in the devoted care of their parents, wider families and the Jewish way of life. "

I have added the emphasis to reinforce the judge’s observations that the sad fact of this case, harsh though it is to say it, is that N was denied that rich benefit by her parents’ bowing to the misfortunes which they had to face at the time of her birth and with which they could not cope. The comparison sought to be made between those children and this child is not a comparison of like with like. Wall J. was right to reject the argument.

Mr Ryder’s final point is that the learned judge erred in “denying those benefits to a child who cannot or may not understand or appreciate them.” Although the case is not put it these terms, certainly not by Mr Ryder, the thrust of his instructions nonetheless amounts to a criticism that the judge discriminated against this child because of her disability. That is a travesty of the care he has taken throughout his hearing of the case and I utterly reject any such innuendo. What Mr Ryder does submit is that a child’s age and understanding are matters which are material matters only for the purpose of considering her “ascertainable wishes and feelings” as the factors to be taken into account under section 1 (3) (a). In my judgment the checklist is not limiting in that way. The Court is not precluded from taking the child’s understanding of the religious ritual, or lack of it, into account as a relevant factor. Her enjoyment of her religion can be a supplement to the weight to be given to her right to that religious life to which, as a Jew, she became entitled by birth. I accept that one may give effect to the right at birth when necessarily the baby has no understanding of its value nor of its pleasure but that is not to the point. In assessing the value of that right to this child, the judge was plainly entitled to have regard to her level of understanding and appreciation, both as an intellectual process and as an emotional response of happiness in the participation in a lifestyle which, to cite paragraph 3.10 of the skeleton argument, is particularly “beautiful and joyous.” The submission continues that “even if you were to take God out of Judaism, the positive, beneficent lifestyle remains”. In my judgment, Wall J. acknowledged that and placed it in the scales. He found it did not tip the balance.

Conclusions.

1. In his dealing with the weight to be given to the religious aspect of this case, I cannot see that the judge can be faulted in any respect at all. He neither took irrelevant matters into account nor did he ignore what was relevant. The appeal against his rejecting the evidence tendered by the applicants is utterly hopeless because the rule is quite clear:-

"Not to have seen the witnesses puts appellate judges in a permanent position of disadvantage against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher courts not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witness and of their own view of the probabilities of the case. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of facts should, as I understand the decisions, be let alone:"

per Lord Sumner in S. S. Hontestroon [1927] A.C. 37, 47. Nothing has been placed before me which causes me even to doubt the correctness of his assessments.

2. The second critical issue for the judge was the question of attachment and the risks inherent in a move. Once again he preferred as he was entitled to prefer the evidence of Professor Sacks.

3. Having accepted that evidence, the judge summarised the position as follows:-

"The arguments for leaving a thriving child in the environment in which she is thriving were, to him, overwhelming. I have to say that I agree."

For my part, I have to say that so do I. In this case, in the events which have happened and with the passage of time, the need for an uninterrupted settled life outweighs the need for a religious life. Having been party to the decision to grant leave to appeal because of the importance of the religious issue raised, and having given N’s claim to her Jewish birthright most anxious consideration, I have in the end not the slightest hesitation in coming to the conclusion that N’s welfare dictated that she should not be moved from those whom she regarded as her devoted parents. The psychological tie outweighs the blood tie. The judge was right to refuse to alter N’s residence.

4. As for the contact order, it emerged during the hearing of the appeal that the natural family desired even more frequent contact than originally had been anticipated. This change of stance was frankly acknowledged by Mr Ryder to be motivated not only by their undoubted and unwavering love for N but also by their intense determination to preserve all opportunities to persuade N at some time in the future to return to them. That would undermine the stability of her placement as a “life-time child”, which it is common ground she is. Since her care by the foster family during her life time is secure, and should not be put at risk, I have no doubt that any more contact than ordered by the judge would be contrary to her best interests. For reasons more fully given by Butler-Sloss L.J. I agree that the appeal against the contact order should be dismissed.

5. Wall J. was right to exercise his discretion under section 91 (14) of the Act as he did. I fully support the guidance my Lady has given for the exercise of this discretion.

6. I would therefore dismiss the appeal.

LORD JUSTICE TUCKEY: For reasons given in both judgments, I also agree that this appeal should be dismissed.

Order: Appeal dismissed; legal aid taxation of both parties' costs; leave to appeal to the House of Lords refused.