Re P (Minor) (Residence order: Child's welfare)

JurisdictionEngland & Wales
JudgeLADY JUSTICE BUTLER-SLOSS,LORD JUSTICE WARD,LORD JUSTICE TUCKEY
Judgment Date30 April 1999
Docket NumberFAFMI 1998/1593/2,PTA 1998/7490/2
CourtCourt of Appeal (Civil Division)
Date30 April 1999
P (A Child)

[1999] EWCA Civ J0430-10

Before:

Lady Justice Butler-sloss

Lord Justice Ward

Lord Justice Tuckey

FAFMI 1998/1593/2

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

FAMILY DIVISION

MANCHESTER DISTRICT REGISTRY

(THE HONOURABLE MR JUSTICE WALL)

Royal Courts of Justice

Strand

London WC2

MR E RYDER QC, PROFESSOR H REICHER & MR T EDGE (Instructed by Rowlands, Manchester, M2 2RW) appeared on behalf of the Appellant

MISS M DE HAAS QC & MISS J WALKER (Instructed by Stephensons, The Pound, 230 Chapel Street., Salford, Manchester) appeared on behalf of the First and Second Respondents

MISS S BIRTLES (Instructed by the Official Solicitor, 81 Chancery Lane, London) appeared on behalf of the Third Respondent

LADY JUSTICE BUTLER-SLOSS
1

N is 8, born on the 19th July 1990. She was born with Down's Syndrome. From 11th December 1991 at age of 17 months she has lived with foster parents. The parents first sought her return in August 1994, having previously in May 1992 decided that she should be placed for adoption.

2

There have been extensive proceedings in relation to N brought by the foster parents and the parents, first in wardship and then under the Children Act 1989. The Official Solicitor has, since early 1994, acted as her guardian ad litem. There was a seven day hearing before Wall J in October 1994. He made a residence order to the foster parents on the 16th November 1994 with reasonable contact to the parents. The parents launched but did not pursue an appeal.

3

On the 26th July 1996 the parents applied for a defined contact order. At a subsequent hearing on 5th September, a defined contact order was made by consent. On the 23rd March 1998 Wall J heard an application by the parents to vary the 1994 residence order. After a five day hearing he refused the residence application; made a defined contact order for four times a year and imposed a restriction upon making any further residence applications without leave of the court, (a section 91(14) order). The appeal, with leave of this Court, is from all three parts of his 1998 order.

4

The parents, the P family.

N is the 14th child of an Orthodox Jewish Rabbi and his wife. The father is 64 and was headmaster of a Jewish school. The mother is 54. Two of the 14 children still live at home, aged 12 and 9. The father is a survivor of the Holocaust and was detained in concentration camps with his family, many of whom died. No doubt as a result of his experiences, he has a morbid fear of illness and hospitals. They have a married daughter, Frieda, who has offered herself as a future potential carer of N. The family has a strong tradition of religious and cultural beliefs which permeates the lives of all its members. The mother expressed it as:-

"Our religious and cultural heritage is our way of life….. It is very much at the core of each of our identities."

The family obeys strict dietary laws and dress and celebrates the Jewish festivals. The members of the family are English speaking but speak Yiddish at home. The judge found that the parents were warm, decent, caring people, successful parents and their children and grandchildren were evident testimony to that success.

5

N's medical condition.

N was not only born with Down's Syndrome but, as a young child, also suffered from serious respiratory problems. At the age of five weeks she was placed with short term foster carers while her mother went into hospital to undergo a hysterectomy operation. After her return home in October 1990, her health deteriorated. According to the 1994 judgment of Wall J: -

"Her nasal and bronchial passages were undeveloped and she was susceptible to infection; she had problems with her breathing and had to spend periods on a ventilator. Although the dates are not entirely clear, it appears that N was in hospital for a week at the end of December 1990, for a further week at the end of January 1991 and for two days in March 1991.

In May 1991 the decision was taken for N to have a tracheotomy, an operation which was performed on 18 June 1991. In simple terms, this is an operation to cut a hole in the windpipe from the front of the neck to enable air to obtain direct entrance to the lower air passages. A consequence is that it is necessary to introduce a tube into the windpipe to keep the opening from closing and that in turn the tube has to be kept clean and unblocked by mucus.

N remained in hospital after the tracheotomy until 11 December 1991……. The tracheotomy was reversed on 28 June 1993 and ……

the probability was that N would not need another tracheotomy."

She had three further admissions to hospital in 1993, but none of significance thereafter.

6

N's disability came as a great shock to the parents. At the time that she was due to leave hospital Mrs P began to doubt her ability to care for her and deal with the tracheotomy tube which required constant supervision. After consultation with the family she came to the reluctant conclusion that she and the father could not meet all the demands of caring for N and asked the local authority to accommodate her with foster parents on her discharge from hospital. The local authority was unable, despite strenuous efforts, to find an Orthodox Jewish family with whom to place N. It placed N with experienced foster parents, the C family. The placement was expected to be short-term, three to six months at most, and there was no suitable alternative foster placement.

7

The foster parents, the C family.

The foster parents are non-practising Roman Catholics and are 54 and 51. They have seven daughters, two of whom, twins aged 16, are still at home. N went to them from hospital on the 11th December 1991 and has remained with them ever since. The tracheotomy was in place for two years and required the most careful monitoring. Both foster parents and their daughter Brenda shared the responsibility of keeping the tube clear and from time to time removing and replacing the tube in the windpipe. N slept for several years in the foster parents' bedroom. The foster family have throughout given an exceptional level of intensity of care to N and have become absolutely committed to her. The judge was extremely impressed by them. He said in his 1994 judgment:-

"The depth of their commitment to her, and the profundity of the emotional experience through which they had passed in caring for her,(particularly, of course, in the phase of her life when she had the tracheotomy tube in place) shone through their evidence: indeed the matter of fact, slightly hesitant language with which they spoke of N rendered their evidence all the more impressive."

Brenda is aged 29 and married. If anything happened to her parents she has offered herself as potential future carer for N, whom she sees as her sister.

8

In May 1992 the parents came to the conclusion that N should be placed long term with foster parents or adopters. On the 5th August the local authority held a case conference in which it resolved to seek a placement with an Orthodox Jewish family. The foster parents then indicated for the first time a wish to care for N themselves. By November 1992 social workers were concerned about the degree of attachment of N to the foster parents. The local authority formally assessed the foster parents as prospective adopters of N. At the same time they began an assessment of a Jewish family whom they considered suitable as adopters. This Jewish family was rejected by the parents. Further attempts were made to find a Jewish family and in the meantime N remained with the foster parents.

9

There was mounting concern about the increasing attachment of the child to the foster parents. The Clerk to the local Beth Din had been consulted in November 1992 and it was again consulted together with the Jewish Social Services. At a meeting it was agreed that a final and time limited effort should be made to find a Jewish family. Wall J set out the considerable efforts by the local authority to find a Jewish family and the consultation process which they engaged in with the agencies and the natural family. On the 10th January 1994 the foster parents issued wardship proceedings and were given leave by Hale J to issue Children Act proceedings: see C v Salford City Council & others [1994] 2 F.L.R 926.

10

1994 Hearing.

At the hearing of the residence application by the foster parents in October 1994, Wall J heard extensive evidence including expert evidence from Dr Arnon Bentovim, child psychiatrist, Dr Frank Bamford, paediatrician, Dr Mary Ward, child psychiatrist and Mrs Valerie Mellor, a clinical psychologist, about the abilities and prospects of development of a Downs Syndrome child. Dr Bamford's paediatric appraisal was that N might live 30–40 years and would be likely to achieve the level of understanding of an 8 year old. In a careful and comprehensive judgment the judge came to the conclusion in 1994 that N had an exceptionally strong attachment to the foster parents who were her psychological parents. He accepted the unanimous opinion of experts that N should only be moved if the move was necessary in her wider interests and he decided that she should live with the foster parents for the foreseeable future which, since she was under a disability, was likely to continue through her life. The 1994 order provided that the foster parents were at liberty to determine all questions of education, religion and upbringing for the child. Prior to the order the foster parents had scrupulously observed the Orthodox Jewish dietary and dress requirements as requested by the parents. On being granted a residence order, the foster parents obtained parental responsibility for her. The crucial decision by...

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