Re M (Minors) (Contact: Leave to Apply)
| Jurisdiction | England & Wales |
| Judgment Date | 1995 |
| Date | 1995 |
| Year | 1995 |
| Court | Court of Appeal (Civil Division) |
BUTLER-SLOSS, SIMON BROWN AND WARD, L JJ
Child – contact – children in care of local authority – grandmother seeking leave to apply for contact – factors to be taken into account.
Contact – children in care – grandmother seeking leave to apply for contact – factors to be taken into account.
The mother had two children who were born in 1982 and 1986. She suffered from a psychiatric disorder. The children were made the subject of care orders in 1987 and placed in a children's home. The mother and grandmother had access to (ie contact with) the children. In 1988 the children were placed with short-term foster-parents and the local authority issued a notice of termination of access and commenced wardship proceedings in June 1988. Ewbank, J ordered that the mother and grandmother should have access at first fortnightly and then every three weeks and that access should stop when a new permanent family was found for the children.
This continuing contact created difficulties and was suspended in February 1991. At a review in the High Court in June 1991 the Judge urged the local authority to bring the matter before their fostering and adoption panel as a matter of urgency but the children continued to be looked after by the "short-term" foster-parents for a further three years. In October 1992 a Judge terminated contact.
In April 1993 the children were eventually placed with a single prospective adopter.
In February 1994 the grandmother applied for leave to apply for contact with the children. When hearing this application for leave in April 1994 the Judge had no evidence as to the views of the prospective adopter nor as to the attitude of the children to contact. On the information before him the Judge was led to expect that the prospective adopter was about to make her application for an adoption order. The Judge held that if the issue of contact were to come before a court prior to an adoption order being made then it would be doomed to failure as it could well have a disruptive effect on the children and the prospective adopter. He therefore dismissed the application for leave. However, he indicated that contact was a matter which might properly fall for consideration when an adoption application had been made and was before the court.
The grandmother appealed.
Held – allowing the appeal: (1) Section 34 of the Children Act 1989 provided for applications for contact with children in care. The scheme of that section was to afford reasonable contact with the child in care to parents and others who had parental responsibility. They might apply for contact as of right but grandparents and others needed
leave to apply for contact. However, the special position of relatives, which included grandparents, was acknowledged and protected by para 15 of Sch 2 to the Act which required the local authority to endeavour to promote contact between the child and, amongst others, relatives. If contact was not afforded to grandparents they needed to seek leave to apply and s 34(3) gave the court a wide discretion in dealing with such applications. The section did not set out any matters which the court should take into account. This could be contrasted with s 10(9) of the 1989 Act which dealt with leave to apply for section 8 orders. Section 10(9) required the court to have regard to the nature of the application, the applicant's connexion with the child, any risk of disrupting the child's life, and where the child was being looked after by the local authority, the authority's plans and the parents' wishes and feelings. It was clear that s 10(9) did not govern applications for contact with a child in care as, in respect of such a child, s 9(1) prohibited the making of any section 8 order other than a residence order. On an application for a residence order in respect of a child in care the criteria of s 10(9) had to be considered. It would be anomalous were the court not to take into account for the exercise of the section 34(3) discretion the criteria specifically laid out for consideration in s 10(9). Those particular factors were also apposite for s 34(3).
(2) In deciding whether to give leave to apply for contact, the court must have regard to all the circumstances but in particular the matters set out in s 10(9) of the Act. These matters were: (a) The nature of the contact sought which could vary from that which was frequent to that which was occasional; and from direct to indirect contact. (b) The applicant's connexion with the child: the more meaningful and important the connexion was to the child, the greater was the weight to be given to this factor. Grandparents ought to have a special place in any child's affection worthy of being maintained by contact though circumstances could diminish the importance to the child of that blood tie. However, by virtue of the terms of para 15 of Sch 2 to the Act, contact between a child in care and his family was assumed to be beneficial and the local authority would need to file evidence to justify why they had considered it was not reasonably practical or consistent with the child's welfare to promote the contact. (c) The risk of disruption to the child's life could be a factor of crucial significance, a fortiori when the child was in care. The risk had to be of disruption to an extent that the child would be harmed by it. In this context, "harm" meant impairment of health and development (see ss 105(1) and 31(9) of the Act) and a child's upset, unhappiness, confusion, or anxiety needed to be particularly severe before it could amount to an impairment of emotional, social, or behavioural development. The risk must arise from the proposed application. The very knowledge that litigation was pending could be sufficiently unsettling to be harmful and, if leave was given, the process of investigating the merits of the application could be sufficiently disruptive if it involved such matters as interviews and psychiatric investigations. (d) The wishes of the parents and the local authority were very material but not determinative. When a care order was made the local authority acquired parental responsibility. Their duty as stated in s 22(3) of the Act was to safeguard and promote the child's welfare and the court should approach applications for leave on the basis that the local authority's plans for the child's future were designed to safeguard and promote the child's welfare.
(4) The approach of the court on an application for leave should be: (i) If the application was frivolous or vexatious or an abuse of the process of the court, it must fail. (ii) If the application failed to disclose that there was any eventual real prospect of success, or those prospects of success were remote so the application was unsustainable, it should be dismissed. (iii) The applicant must satisfy the court that there was a serious issue to try and must present "a good arguable case" in the sense that there was a real issue which the applicant might reasonably ask the court to try which was better than merely arguable yet not necessarily one which was shown to have a better than even chance, a fair chance, of success. However, an over-analysis of these "tests" should be avoided as it would be unwise
to seek to restrict the discretion of the court by the imposition of a rigid formula and equally unwise to circumscribe rigidly the manner of the exercise of the discretion.
(5) In this case, the circumstances had led the Judge to the expectation that the prospective adopter was on the point of making her application for an adoption order. That was a year ago and she had not yet applied. Consequently, the whole basis upon which the Judge had dealt with this application had been undermined. The matter would therefore be sent back for consideration by a Judge of the High Court to be set down as soon as the local authority and the Official Solicitor had completed their inquiries.
Statutory provisions referred to:Children Act 1989, ss 9(1), 10(9), 22, 31(9), 34 and 105(1) and Sch 2, para 15.
Cases referred to in judgment:American Cyanamid Co v Ethicon Ltd [1975] AC 396; [1975] 2 WLR 316; [1975] 1 All ER 504.
B (Minors) (Children in Care: Contact), Re[1993] 1 FCR 363; [1993] Fam 301; [1993] 3 WLR 63; [1993] 3 All ER 542.
Cheshire County Council v M[1992] 2 FCR 817.
F v S (Adoption: Ward) [1973] Fam 203; [1973] 2 WLR 178; [1973] 1 All ER 722.
G v Kirklees Metropolitan Borough Council[1993] 1 FCR 357.
JR v Merton London Borough[1992] 2 FCR 174; sub nom Re A and Others (Minors) (Residence Order: Leave to Apply) [1992] Fam 182; [1992] 3 WLR 422; [1992] 3 All ER 872.
Jane Hoyal for the grandmother.
John Reddish for the local authority.
LORD JUSTICE WARD.This is an appeal from an order of Cazalet, J made on 22 April 1994, whereby he dismissed an application by the maternal grandmother for leave to issue applications for contact to her grandchildren, P who was born on 9 September 1982, now nearly 12½ years old and R born on 14 January 1986, now 9 years old.
The mother of the children had a sad history of psychiatric disturbance which led her to place her children in the voluntary care of the local authority in July 1987, when P was not yet 5 years old and R was only 18 months old. They returned to the family, but the rehabilitation was short-lived, and a place of safety order had to be taken out on both children on 17 August 1987. They have not lived with their mother or grandmother since then. A care order was made in a juvenile court in December 1987, and, consistent with their own views and taking account of the similar views expressed by the guardian ad litem appointed for those proceedings, the local authority took the decision that the children should be placed with a substitute...
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