Re C (A Minor) (Adoption: Parental Agreement: Contact)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BALCOMBE |
| Judgment Date | 05 November 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J1105-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 92/1040 |
| Date | 05 November 1992 |
[1992] EWCA Civ J1105-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LEEDS COUNTY COURT
(HIS HONOUR JUDGE CHARLESWORTH)
Royal Courts of Justice.
Lord Justice Balcombe
Lord Justice Steyn
Lord Justice Hoffmann
92/1040
MR. B. NOLAN Q.C. and MR. R. BICKERDIKE (instructed by Messrs. Emsleys of Garforth, Leeds) appeared on behalf of the Appellants (the Parents).
MISS A. FINERTY (instructed by the Solicitor, Legal Services Division, Leeds City Council) appeared on behalf of the First Respondent (the Local Authority).
MR. P. ISAACS (instructed by Messrs. Henry Hyams & Co. of Leeds) appeared on behalf of the Second Respondent (the Guardian ad litem).
On 20th and 21st October 1992 we heard an appeal by the parents of a four-year old girl, Kathryn, from an order of His Honour Judge Charlesworth made in the Leeds County Court, whereby he dismissed the parents' application for a residence order in respect of Kathryn (who was then in the care of the local authority), but instead granted the local authority's application for permission to refuse contact between Kathryn and her parents and for an order freeing her for adoption. In order to make the order freeing Kathryn for adoption the judge held that the mother was unreasonably withholding her consent; it was not necessary for him to make a similar finding in respect of the father, since the parents have never married and the father has no parental responsibility for Kathryn under the Children Act 1989 and so is not her parent for the purposes of the Adoption Act 1976. At the end of the hearing we dismissed the appeal saying that we would give our reasons later. This we now do.
The father is 49 years old and the mother 48. They have lived together since 1987. The judge's assessment of the parents is contained in the following passage from his judgment:
"[The father] is or certainly has been a very hardworking man and has inevitably in that direction worked long hours, he tells me, and is clear from all the evidence in the case, during the time that Kathryn was at home during her first year, two years, or twenty months as it turns out, that she was at home. He was by and large, I find, from all the evidence given to me—and I need not, I think relate it; I don't think it is in dispute—to all intents and purposes not about during the day up to seven days a week on occasions—not always but sometimes. He is not to be necessarily criticised for that. He will not be the only father, I have no doubt, who has never changed a nappy or even bathed a child, as I am sure there are many fathers who choose not to participate in that activity and leave it all, as in this case I find it was all left, to [the mother] to care for Kathryn.
There were, however, immediate concerns about the ability of [the mother] to cope adequately with the task of bringing up a baby and small child in an appropriate way. The almost unanimous evidence of all the witnesses who have had contact with her, experts and non-experts and myself, have assessed [the mother] as of limited intellectual ability and she does have considerable, in my judgment, learning problems."
There was ample evidence before the judge that fully justified these findings and they were not challenged before us.
The mother has another daughter, Sharon, by a man who died young. The mother and Sharon then went to live with the mother's mother (Sharon's maternal grandmother), and Sharon was effectively raised by her grandmother who considered that the mother was not equal to the task. When the mother went to live with the father Sharon remained with her grandmother, but the grandmother has recently died and Sharon now lives with the parents and regards their home as her home. The significance of Sharon's upbringing is that before the birth of Kathryn the mother had had no practical experience of looking after a young child.
Kathryn was born on 12th May 1988. Her early care was in the hands of the mother, since the father was at work much of the time. In June 1988 the health visitor, Miss Greenwood, became involved with the family and from the outset was concerned about Kathryn. Her concerns were about the mother's ability to care for Kathryn because of the mother's limited intelligence. She was also concerned about violence in the relationship between the father and the mother of which the mother complained to her and of which Miss Greenwood on at least two occasions saw physical evidence by way of bruising on the mother. These concerns came to a head in April 1989 when Miss Greenwood referred Kathryn's case to the social services department of the local authority. Miss Greenwood described Kathryn at this time as a frightened little girl who cried at almost everything and who was not developing normally emotionally and socially and only with difficulty physically. The social services in the person of Mr. Cocker became involved and arrangements were made for the Kathryn to attend a day nursery, whose staff described Kathryn as pale, dirty and generally listless and who made no attempt to move or get down from the mother's knee. However Kathryn's attendance at the day nursery soon ceased, apparently at the instance of the father.
In May 1989 Kathryn was first seen by Dr. Hobbs, a consultant community paediatrician. His report of 30th June 1989 described Kathryn as 'thriving well', but he subsequently qualified this as intended to refer only to her physical development; in the same report he described Kathryn as appearing to be emotionally and socially deprived. In June 1989 the mother and Kathryn started to attend a mother and toddler group and in August 1989 the social services decided that their further involvement with Kathryn was unnecessary. Mr. Cocker said that there were at that time no grounds for his department taking statutory action. The judge described this decision as quite incredible, but that was the position and remained so until January 1990.
On 1st January 1990 the parents became concerned when they observed spots on Kathryn's bottom. As their general practitioner was not available they took Kathryn to hospital where she was seen by Dr. Hobbs. He considered that Kathryn showed signs of sexual abuse and reported his concerns to social services, and on 4th January 1990 a place of safety order was obtained. Kathryn was placed with short-term foster parents, Mr. and Mrs. Bass, with whom she has since remained. Dr. Hobbs has throughout maintained his belief that Kathryn was sexually abused by the father, but his evidence to this effect was rejected by the judge, who heard other medical evidence, and made a firm finding that there was no sexual abuse. Indeed the local authority made a concession to that effect in their counsel's closing submissions to the judge. However, it is clear that the belief that there may have been sexual abuse had a permeating effect on the management of the case throughout the whole period from January 1990 to September 1992.
Kathryn's reception into care has proved wholly beneficial to her. The judge held—and again this is not challenged—that the dramatic change in Kathryn since she has lived with the Basses indicated the extent to which Kathryn had previously suffered social and emotional deprivation. He further held that this change in Kathryn was not recognised by the parents, who had not previously seen any problems.
For the first two months that Kathryn was in care the parents had access to her of one hour per week, supervised, at the social services offices. After March 1990 there was a gradual increase in access, which took place at the parents' home, with a decrease in the level of supervision. In May 1990 Kathryn started to attend again at the same day nursery as before, where the mother also enjoyed access to her, at first one day per week, later increasing to three days per week. The local authority then decided to seek a care order in respect of Kathryn, but on the basis that Kathryn would be rehabilitated to her parents, and in August 1990 access to the parents was increased to two days per week at the family home, in addition to that enjoyed by the mother at the nursery. A hearing for the care proceedings at the juvenile court was fixed for 4th September 1990 and Kathryn's then guardian ad litem prepared a report which spoke well of the quality of access enjoyed by Kathryn to her parents. However he expressed reservations about the mother's ability and the father's judgment in relation to the care of Kathryn. The local authority maintained their view that Kathryn should be rehabilitated with her parents and on that basis the parents withdrew their opposition to the care order, which was made accordingly on 4th September 1990.
Following that order access to the parents was increased to the "unprecedented level" of three days per week at the family home, as well as that enjoyed by the mother at the nursery, and access remained at these levels until April 1991. However there was not the substantial social services input which the guardian ad litem had anticipated as necessary if Kathryn were to be successfully rehabilitated to her parents.
Under the Accommodation of Children (Charge and Control) Regulations 1988 a local authority which wished to place a child in their care with a parent had to make certain inquiries about the suitability of the person with whom it was proposed that the child should be placed, and when these inquiries were made it became apparent that none of the professionals concerned supported rehabilitation because they took the view that the parents—and the mother in particular—just could not cope. The parents were on 30th...
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