H (Children)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LORD JUSTICE POTTER,LORD JUSTICE SEDLEY |
| Judgment Date | 02 February 2005 |
| Neutral Citation | [2005] EWCA Civ 318 |
| Docket Number | B4/2004/1931 |
| Date | 02 February 2005 |
| Court | Court of Appeal (Civil Division) |
[2005] EWCA Civ 318
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PORTSMOUTH COUNTY COURT
(HIS HONOUR JUDGE SHAWCROSS)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Thorpe
Lord Justice Potter
Lord Justice Sedley
B4/2004/1931
MISS SARAH EARLEY (instructed by Legal Practice, Hampshire County Council) appeared on behalf of the Appellant
MR JONATHAN SAMPSON (instructed by Child Law Partnership) appeared on behalf of the Respondent Mother
MR PETER HORROCKS (instructed by Child Law Partnership) appeared on behalf of the Guardian
(Approved by the Court)
Wednesday, 2 February 2005
Miss Earley, in a most able and persuasive submission, challenges the order of His Honour Judge Shawcross, sitting in the Portsmouth County Court, refusing the local authority's application for an order under section 34(4) terminating contact between the parents and the children. The judge had to consider the future of two children—Celine, who is 5; and Steven, who is 3. There was an issue as to their future care and management, the parents contending that they were acceptable long-term carers, despite a long history which included the making of a care order in relation to Celine. The parents sought the discharge of that order and the local authority sought an order in respect of the younger child.
It was a case with a very considerable history, which the judge considered carefully over the course of the first 16 pages of his judgment. He then turned to consider the disposal in the light of his findings as to past events. He explained over the following 8 pages of his judgment why it was that both children had to be committed to care and to a care plan which provided for their adoption. Only at the end of his judgment did he come to consider the application for a section 34(4) order.
At the outset he identified what was the basis of the local authority's application. It was not a case in which they were saying that contact should terminate forthwith, or indeed within the foreseeable future. It was not a case in which it was said that parental contact should cease absolutely once an adoptive family had been identified and the process of introduction and placement commenced. The judge was quite plain that this was a case in which there should be post-adoption contact to the parents; so he identified the local authority's intended use of the section 34(4) order in these terms:
"Why do they want it? They say that as these children approach adoption it is necessary to enable them to move to the new placement to prevent them effectively seeing their parents."
So the local authority sought this powerful order for the relatively restricted purpose of inserting a suspension into what was foreseen to be a long-term continuing relationship between parents and children.
The judge refused them their order for a number of clearly stated reasons. The first was that there had been no adopters identified. He said:
"It seems to me that we are some way off adoption, if indeed we ever get there".
His second consideration was that, as I have already stated, this was a case where the expert evidence supported contact to the parents as not detrimental to the interests of the children in the long-term. This therefore was not a case for closed adoption. The third consideration was that these were parents who were not predictably disruptive, either deliberately or even subconsciously, of a future adoptive placement. Fourthly, the judge made the point that, whilst the local authority's responsible use of the power was not in doubt so long as the current social work team were in charge, he could not have the same confidence once the responsibility moved to the permanence team, who would be responsible for implementing the introduction and placement. Finally, the judge made the attractive point that were he to make a section 34(4) order it would be sending out the wrong signals to all presently engaged with the case and also to prospective future adopters and that was something that would be contrary to the interests of the children.
In passing, the judge referred to Re G, which Miss Earley in the course of her submissions has said provided no foundation at all for the decision ultimately taken by the judge.
We have this morning heard from Mr Horrocks, for the guardian, who has drawn attention to the line of authority that seems to be nearest to determining any principle for the present appeal. The case of Re L [1996] 1 FLR 116 was primarily concerned with standard of proof in sex abuse cases, but...
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