Re E (A Minor) (Care Order: Contact)
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT,LORD JUSTICE SIMON BROWN |
| Judgment Date | 29 April 1993 |
| Neutral Citation | [1993] EWCA Civ J0429-14,[1993] EWCA Civ J0429-16 |
| Docket Number | CCFM1/92/1382/F CCFMI/92/1588/F CCFMI/92/1589/F,CCFMI/92/1382/F CCFMI/92/1588/F CCFMI/92/1589/F |
| Court | Court of Appeal (Civil Division) |
| Date | 29 April 1993 |
[1993] EWCA Civ J0429-14
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON THE APPEAL FROM MANCHESTER COUNTY COURT
(His Honour Judge Bennett)
Before: The President (Sir Stephen Brown) and Lord Justice Simon Brown and Lord Justice Peter Gibson
CCFMI/92/1382/F
CCFMI/92/1387/F
CCFMI/92/1588/F
CCFMI/92/1589/F
MISS LINDSEY KUSHER Q.C. and MR BERNARD WALLWARK (instructed by Linder Myers, Manchester) appeared on behalf of Mr and Mrs Englehard, First and Second Appellants)
MR DAVID HARRIS QC and MISS YVONNE COPPEL (instructed by Joan Ferguson & Co, Manchester) appeared on behalf of James Englehard and Peter Englehard, Joint Third Appellants (acting by Janet Ollier, a Guardian ad litem).
MISS ESTELLA HINDLEY, Q.C. (instructed by the solicitor, Salford Local Authority) appeared on behalf of the Respondents.
( )
29th April 1993
This is an appeal from an Order made by his Honour Judge Bennett sitting in the Manchester County Court on the 21st October 1992. The case concerned two children; they are boys called James aged about 5.1/2 at the time of the Learned Judge's judgment and Peter 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 placed the children with short-term foster parents on 8th November 1991. That was done with the agreement of the parents. The children were assessed on behalf of the Local Authority and they were found to be well below the appropriate level of development and plainly required particular attention and support. I need not go into the details which indicate how difficult and complicated the situation was save to say that there were, in fact, applications by the friends of the parents for leave to apply for residence orders at the time when the children had been taken into voluntary care by the social services department. That application for Leave by the parents' friends was refused and they did not continue with further proceedings.
The parents were themselves assessed by the Local Authority's Social Services Department and it was discovered that they had their own difficulties which prevented them from exercising the appropriate level of care of their children. On 17th March 1992, the Local Authority applied for a Care Order under Section 31 of the Children Act in respect of both these boys. A Guardian ad Litem was appointed; interim Care Orders were made successively until the matter came before the Learned County Court Judge last October. In the meantime certain investigations were carried out on behalf of the Guardian. Dr. Maquire Williams, and experienced clinical psychologist examined the papers and considered the position of the children and the parents. A paediatrician was also involved and the children were assessed by an Educational Psychologist.
The matter also received the attention of the Social Services Department in relation to the formulation of a long-term care plan for the children and in July 1992 a care plan was prepared by the Social Services Department. That care plan envisaged the ultimate placing of the children for adoption; and that was the basis of the Local Authority's case. That is to say, they were seeking a Care Order under Section 31 of the Children Act and the care plan which they proposed to place before the Court indicated that their intention was to arrange for the adoption of these two boys.
When the matter came before Judge Bennett, there was no dispute about the fact that the circumstances of the children and their parents required that a Care Order should be made. So the Learned Judge made a Care Order and he did so with the consent of all the representatives of the parties appearing before him, including, of course, the Guardian ad Litem. However, the matter which occupied no less than six days of the hearing before the Learned Judge, concerned the question of contact. The Social Services Department of the Local Authority applied to the Court under the provisions of Section 34, sub-section (4) of the Children Act 1989 for an Order authorising it to refuse contact between the children and their parents on the basis that they wished:
"to be in a position to terminate contract when the children were placed with long-term foster parents in pursuance of their adoption plan. It was proposed that contact should be reduced progressively during the succeeding months and then finally terminated when the children were placed with the proposed adoptive parents."
The parents and the Guardian ad Litem resisted that application. The Local Authority made their application upon the basis that continued face-to-face contact between the children and their parents would conflict with their care place which provided for the closed adoption of the children.
At the beginning of the hearing before the Learned Judge, submissions were made to him on the approach to be adopted to the application to refuse contact. A decision of Mr Justice Rattee in the case of " West Glamorgan County Council against P" now reported in 1993 1 F.L.R. No.3 Page 417 was cited. This particular report had not been published but a report of the case had been made. The submission made by Counsel on behalf of the Local Authority was that the Learned County Court Judge should approach the issue of contact upon the basis of the decision in the West Glamorgan County Council case. At page 407 of the report —just below letter G the Judge said:
"The principles set out in RE S (minor) [1991] 1 F.L.R. 161 apply equally to a case brought under the Children Act 1989. Accordingly, the Court will not make the Order which is incompatible with the Local Authority's plans unless the decision of the Local Authority could be shown to have been made capriciously or the Court is satisfied on cogent evidence that the child's welfare demanded the Court exercising its powers in the manner incompatible with the Local Authority's plans".
It is said that the facts of that case were different
from the facts of the present case. It was submitted to the Learned Judge by Counsel for the Local Authority that that was the correct approach. The Learned Judge instantly indicated that that was the test that he intended to adopt
in hearing the present application to refuse contact made
by the Local Authority.
The first ground of appeal in this case is that the
Judge was wrong in adopting and following that test. In
particular, it is submitted that that test has been
discredited by this Court in the subsequent case of Re B (Children in care contact) reported in 1993 1 F.C.R. at page 363. In particular, attention is drawn to a passage
in the judgment of Lord Justice Butler-Sloss at page 380 of
the report. I begin from just below letter G:
"Contact applications generally fall into two main categories, those which ask for contact as such, and those which are attempts to set aside the Care Order itself. In the first category, there is no suggestion that the applicant wishes to take over the care of the child and the issue of contact often depends upon whether contact would frustrate long-term plans for the child in a substitute home, such as adoption where continuing contact may not be for the long-term welfare of the child. The presumption of contact, which has to be balanced against the long term welfare of the child and particularly where he will live in the future. Contact must not be allowed to destabilize or endanger the arrangements for the child and in many cases the plans for the child will be decisive of the contact application. There may also be cases where the parent is having satisfactory contact with the child and there are no long-term plans or those plans do not appear to the Court to preclude some future contact. 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 Parliament has given to the Court, and not to the Local Authority, the duty to decide on contact between the child and those named in S.34(1). Consequently, the Court may have the task of requiring the Local Authority to justify their long-term plans to the extent only that those plans exclude contact between parent and child".
It is submitted that the present case falls within those words of Lord Justice Butler-Sloss. There is no suggestion that the applicants —that is to say in this case, the parents —wish to take over the care of the child. At Page 381 just below letter "A" the Learned Lord Justice further said:
"Mr Munby argues that it is for the Court, with the enhanced jurisdiction of the Children Act, to consider whether even at this late stage there should be some investigation of the proposals of the parents with the possibility of reconsidering the Local Authority plans. Mr. Horrocks argues the Court cannot go behind long-term plans of the Local Authority unless they were capricious or otherwise open to scrutiny by the way of judicial review....
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