Re E (Children in Care: Contact)
| Jurisdiction | England & Wales |
| Judgment Date | 1994 |
| Date | 1994 |
| Court | Court of Appeal (Civil Division) |
SIR STEPHEN BROWN, P, SIMON BROWN AND GIBSON, L JJ
Care proceedings – children in care – application by local authority to terminate contact – local authority proposing to place children for adoption – power of court to assess plans of local authority – extent to which local authority investigated possibility of open adoption – further evidence.
Contact – children in care – presumption of continuing contact – Re B approved – duty of court to decide issue of contact.
This case concerned two children aged 5½ and 4 at the time of the proceedings. They had had an unusual and difficult upbringing. Their parents had not been able to exercise the appropriate level of care for them and had placed them with friends and the children had remained there for most of 1990. As a result of problems the parents found in exercising contact to their children while they remained with their friends, the children were placed in voluntary care and eventually were found foster parents. The children were
then assessed by the local authority and other professionals and were found to be well below the appropriate level of development. The parents were similarly assessed and found to be inadequate carers for their children, a fact which the parents did not dispute at the hearing.
The social services department formulated a long-term care plan for these children withthe intention of arranging for their adoption. There was never any dispute that a care order should be made, what was disputed was the question of continuing contact as between the children and their parents. The local authority incorporated in their long-term plan the progressive reduction of contact leading to its final termination when the children were eventually placed with the proposed adoptive parents. The local authority maintained that there was no real likelihood of being able to find proposed adoptive parents who would countenance continuing contact after adoption, although no specific investigations had been made. The local authority therefore applied to the court under s 34 of the Children Act 1989 for an order authorising them to refuse contact between the children and their parents. The parents and guardian ad litem resisted that application.
The guardian ad litem and a clinical psychologist both gave evidence that there was a benefit to the children of contact with the parents which would not undermine their permanent placement with either adopters or long-term foster parents.
The Judge adopted the test formulated in West Glamorgan County Council v P (
no 2) [1992] 2 FCR 406 in holding that although continuing contact would be in the interests of the children, he would make the order sought by the local authority, particularly having regard to the factor of the delay in arranging long-term placement of the children. The parents and the guardian ad litem appealed.
Held – allowing the appeal: (1) The test set out in West Glamorgan County Council v P (No 2) (above) was not the appropriate test to be applied in applications of this kind. In that case it was held that a court would not make an order which was incompatible with the local authority's plans for long-term care of the child unless the decision of the local authority could be shown to have been made capriciously or the court was satisfied that the child's welfare demanded that the court should exercise its powers contrary to the local authority's plans. The correct test to be adopted when dealing with applications under s 34 of the Children Act 1989 was set out in the case of Re B (Children in Care: Contact)[1993] 1 FCR 363 where it was held that there was a presumption of contact in s 34 which the court must balance against the long-term welfare of the child; that contact must not be allowed to destabilize or endanger arrangements for a child; that Parliament had given to the court and not the local authority the duty to decide on contact between the child and those persons named in s 34(1); and that therefore the local authority might have to justify their long-term plans for the child if termination of contact formed a part of those plans.
(2) In the present case the evidence of both the clinical psychologist and the guardian ad litem contained very strong views as to the particular value of some continuing direct contact between the children and the parents. In the light of that evidence the local authority could not simply dismiss the likelihood of obtaining suitable adopters prepared to entertain contact between the children and their parents upon the basis that there were no such prospective adopters on the register at the time. Given the desirability of continuing contact, given that it could never truly threaten any future placement, and given the weight of evidence suggesting the children's special need for it, there should have been further investigation as to the possibility of finding adopters prepared to entertain continuing contact.
(3) The order of the Judge would be set aside so far as contact was concerned whilst not disturbing the care order. The parties wished to adduce further evidence, including evidence to the effect that there was a possibility of long-term foster placement with the present foster parents. It would be ordered that the case be reheard in the light of the authority of Re B (above) and that the rehearing be before a High Court Judge in the light of the further evidence to be adduced. It was highly desirable that the matter be considered afresh by a judge who would have the advantage of hearing further from the local authority as to the prospects of open adoption and their considered views upon the merits or otherwise of long-term fostering. The advantages of a rehearing outweighed the disadvantages of delaying still further a final decision as to the long-term placement of the children.
Statutory provisions referred to:Child Care Act 1989, ss 31 and 34.
Child Care Act 1980 [Part 1A].
Cases referred to in judgment:B (Child in Care: Contact), Re[1993] 1 FCR 363; sub nom Re B (Minors) (Termination of Contact: Paramount Consideration) [1993] 3 WLR 63.
S (Child in Care: Access), Re [1991] FCR 82.
West Glamorgan County Council v P (No 2)[1992] 2 FCR 406.
AppealAppeal from His Honour Judge Bennett sitting at Manchester county court.
Lindsey Kushner, QC and Bernard Wallwark for the parents.
David Harris and Yvonne Coppel for the guardian ad litem and the children.
Estella Hindley, QC for the local authority.
SIR STEPHEN BROWN, P.This is an appeal from an order made by his Honour Judge Bennett sitting in the Manchester county court on 21 October 1992. The case concerned two children; they are boys, the elder aged about 5½ at the time of the Judge's judgment and the younger who was nearly 4. They were children with varying particular needs and suffering particular disadvantages in their circumstances.
The history of the boys is an unusual one. They had in fact, been staying with friends of their parents for several months: from January 1990 until the end of that year. It was a curious situation. The parents had personality difficulties of their own which had contributed to the unusual situation of the boys being cared for by their friends. The parents found themselves in difficulty in having the contact they desired with their children. In the result, the children were placed in voluntary care with the social services department of the local authority; and in fact, the local authority eventually...
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