Re B (Children in Care: Contact)
| Jurisdiction | England & Wales |
| Judgment Date | 1993 |
| Date | 1993 |
| Court | Family Division |
HIS HONOUR JUDGE GOSLING
COURT OF APPEAL
17 DECEMBER 1992
BUTLER-SLOSS AND KENNEDY, L JJ
Care proceedings – children in care – application by local authority to terminate contact – local authority proposing to place children for adoption – function of court to have regard to welfare of children – power of court to assess plans of local authority.
Contact – children in care – presumption of continuing contact – local authority proposing to place children for adoption – duty of court to decide issue of contact.
The mother had three children: a girl born in 1988, a girl born in 1990, and a boy born in 1992. For some time the mother lived with the father of the two girls. The parents' relationship was volatile and violent. The two girls were born into a life of chronic instability, with frequent changes of address, parental disputes, and lack of proper care. In August 1990 they were committed to the care of the local authority under place of safety orders and subsequent interim care orders. Full care orders were made in February 1991. In May 1991 the local authority decided that the two girls should be placed with a view to adoption and this proposal was approved by the adoption panel in October 1991. The mother's contact with the children was erratic but she maintained weekly contact in one form or another.
When the boy was born in March 1992 the local authority commenced care proceedings and interim care orders were obtained. The local authority arranged for the mother and the baby to go to a residential home. After a bad start, the mother co-operated and her care of the boy was excellent. She left the home with the boy in August 1992 and set up home with him on her own. The social worker who had been in charge of the case for two years reported that the mother had made a very good job of looking after the boy.
From January 1992 the mother exercised more regular contact with the two girls, visiting them twice a week. From March 1992 the mother had frequent unsupervised contact with the girls. She collected them from the foster home and took them to her flat. She cared for them on those visits very successfully and the girls had enjoyed the visits. She had
shown determination and commitment to those contact visits as the journey between her flat and the foster home was a difficult one.
The substantive hearing of the care proceedings in respect of the boy came before the Judge in September 1992. Also before the Judge was an application by the local authority for leave to terminate care between the girls and the mother; and an application by the mother to discharge the care orders in respect of the two girls. The application for a care order for the boy was not opposed. The local authority proposed to leave the boy with the mother. As there was no realistic chance of the girls being returned to the mother immediately, she did not pursue that application but, with the support of the guardian ad litem, requested that it be adjourned for three months for an assessment of the mother's ability to cope with the three children. The Judge held that, whilst it might be possible to place the girls with the mother in three or four months' time, it would then be too late to start an attempt at rehabilitation.
As to the local authority's application for leave to refuse contact, the Judge held that he had to consider the issue of contact in the context of the local authority's plan to place the two girls for adoption and that, in that context, the issue was whether the welfare of the children required that contact should be refused. He held that there was an urgent need for the girls to reach stability and security and that, in their interests, the local authority's application for leave to terminate contact would be granted.
The guardian ad litem, acting on behalf of the two girls, appealed against the decision authorizing the local authority to terminate contact.
Held – allowing the appeal: (1) The Children Act 1989 was a major piece of reforming legislation. It provided its own statutory framework which, together with the relevant rules, was comprehensive and self-sufficient, and it had introduced substantial changes. Under the previous law, when a magistrates' court made a care order the powers of the court did not extend beyond the making of the order and the local authority took over the care of the child and was not subject to judicial control. By contrast, when under the previous law a Judge made a care order in the wardship of matrimonial jurisdiction, he could give directions and require the case to return for further consideration. The position had now changed. The aim of the Children Act was to incorporate the best of the wardship jurisdiction within the statutory framework without any of the perceived disadvantages of judicial monitoring of administrative plans. Where a care order was made, the local authority had parental responsibility for the child. The court had no continuing role in the future welfare of the child unless a substantive issue came before the court. Such issues included applications for a section 8 residence order and applications in respect of contact. The court then had a duty to apply s 1 of the Act which stated that the child's welfare should be the court's paramount consideration, and also required the court to have regard to the prejudicial effect of delay, to the checklist including the range of orders available, and whether to make an order.
(2) Contact applications usually fell into two main categories. First, those which asked for contact as such with no suggestion that the applicant wished to take over the care of the child. In such a case the issue of contact would often depend on whether contact would frustrate long-term plans for the child. By s 34 of the 1989 Act there was a presumption of continuing reasonable contact. This presumption of contact, which had to be for the benefit of the child, had to be balanced against the long-term welfare of the child. The proposals of the local authority, based on their appreciation of the best interests of the child, must command the greatest respect and consideration from the court, but the court, not the local authority, had the duty of deciding the issue of contact. Consequently, the court might require the local authority to justify their long-term plans to the extent only that they
excluded contact between parent and child.
(3) The second category of applications for contact were those which were attempts to set aside the care order itself. In such a case the court would obviously take into account the failure to apply to discharge the care order. But the provisions of s 1 of the 1989 Act had to be considered and the local authority had the task of justifying the cessation of contact. There might be cases where the local authority had not made effective plans or there had been considerable delay in implementing them, and a parent sought to be a possible future primary caretaker. The court was not limited to going behind the plans of the local authority only if they had acted capriciously or were otherwise open to scrutiny by way of judicial review. It was for the court, with the enhanced jurisdiction of the Children Act, to consider whether at that late stage, here should be some investigation of the parent with the possibility of reconsidering the local authority's plans. In the present case the Judge was in error in not appreciating that he was able to have another look at the mother as a possible future carer and to give appropriate directions for assessments to be made. He did not look at the relevant issues of possible rehabilitation and delay and his decisions adverse to the mother were very much influenced by his belief that he had no right to interfere with the local authority's plans. That vitiated his exercise of discretion and his decisions could not stand. Therefore, the court had to decide whether the mother should be assessed as the potential carer of all three children. There was evidence of professional opinions that the mother might become an adequate mother for the children. Balancing the risks of failure and success and the question of delay, it was clear that the mother's potential should be investigated. Not to do so would be unfair to the children. The order of the Judge would be set aside.
Statutory provisions considered in the judgment of Judge GoslingChildren Act 1989, s 33.
Statutory provisions considered in the judgment of Butler-Sloss, LJChild Care Act 1970, ss 12A to 12G.
Children Act 1989, ss 1, 8, 10, 31, 33, 34, 44, 91(1) and 100.
Children and Young Persons Act 1969, s 1.
Domestic Proceedings and Magistrates' Courts Act 1978, s 10.
Family Law Reform Act 1969, s 7(2).
Guardianship Act 1973, s 2(2)(b).
Cases referred to in the judgment of Butler-Sloss, LJA v Liverpool City Council [1982] AC 363; [1981] 2 All ER 385; 145 JP 318.
JR v Merton London Borough[1992] 2 FCR 174; sub nom Re A (Residence Orders: Leave to Apply) [1992] Fam 182; [1992] 3 All ER 872.
S (Child in Care: Access), Re [1991] FCR 82.
W (A Minor) (Wardship: Jurisdiction), Re [1985] AC 791; 149 JP 593; sub nom W v Hertfordshire County Council [1985] 2 All ER 301.
West Glamorgan County Council v P (No 2)[1992] 2 FCR 406.
Additional cases cited to Court of AppealAdams v Adams [1984] FLR 768.
C v C (Custody of Children) [1988] FCR 411.
Cheshire County Council v B[1992] 2 FCR 572.
CN (A Minor) (Custody Appeal), Re[1992] 2 FCR 401; sub nom Kent County Council v C [1992] 3 WLR 808.
Cossey v Cossey (1980) 11 Fam Law 56.
G v G (Minors: Custody Appeal) [1985] 1 WLR 647; [1985] 2 All ER 225.
Hereford and Worcester County Council v EH [1985] FLR 975.
KD (A Minor) (Ward: Termination of Access), Re [1988] FCR 657; [1988] AC 806; [1985] 1 All ER 577.
M and H (Minors), Re [1989] FCR 65; [1990] AC 686; sub nom M v H [1988] 3 All ER 5.
AppealAppeal from His Honour Judge Gosling
The mother had two children, both girls, who were taken into care, following...
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