Re S (Children) (Termination of Contact)
| Jurisdiction | England & Wales |
| Judgment Date | 2005 |
| Year | 2005 |
| Date | 2005 |
| Court | Court of Appeal (Civil Division) |
Children – Care proceedings – Termination of contact with natural parent – Judge making order granting local authority leave to terminate parental contact – Whether judge in error – Children Act 1989, s 34(4).
Complex public law proceedings had taken place between a local authority and a mother in respect of her three children, who were represented by a guardian. The local authority and guardian had requested that the court make an order under s 34(4) of the Children Act 1989 to provide that if any contact agreements were not kept by the mother in the future, the local authority could terminate contact without a further application to the court. The mother contended that an order under s 34(4) was not appropriate, and sought a positive order allowing her contact with the children six times a year. The judge subsequently granted a care order to the local authority in respect of all three children, and gave leave to the local authority to refuse contact between the mother and the children under s 34(4). He further granted the mother contact with children four times a year. The mother appealed against the making of the order under s 34(4).
Held – In the instant case, the effect of the s 34(4) order had been to place on the local authority both the power and the responsibility to implement the judge’s programme in a future world where the court did not have a continuing function and where there was no continuing involvement of the guardian. That placed the mother in a position of vulnerability and insecurity, however honourable the local authority’s intentions. The order as drawn had failed in its primary purpose in giving expression to the discretionary judgment of the trial judge giving paramount consideration to the children’s welfare, and should not have been made in the negative form that it was. That part of the order made pursuant to s 34(4) of the 1989 Act would, accordingly, be set aside and substituted by the positive order that the mother have contact with the children four times a year. The appeal would be allowed.
Cases referred to in judgmentsL (minors) (care proceedings: appeal), Re[1996] 2 FCR 352; sub nom Re L (sexual abuse: standard of proof) [1996] 1 FLR 116, CA.
T (children in care: contact), Re[1997] 3 FCR 73; sub nom Re T (minors) (termination of contact: discharge of order) [1997] 1 All ER 65, [1997] 1 WLR 393, [1997] 1 FLR 517, CA.
AppealThe mother appealed against the decision of Judge Lloyd, whereby he granted a care order to the local authority in respect of all three children, and gave leave to the authority to refuse contact between the mother and children under s 34(4) of the Children Act 1989. The facts are set out in the judgment of Thorpe LJ.
Ruth Kirby (instructed by McKenzies) for the applicant.
Leslie Keegan (instructed by the Legal Department, London Borough of Enfield) for the local authority.
Jeremy Rosenblatt for the guardian.
THORPE LJ.[1] There have been complex public law proceedings between the London Borough of Enfield and MS in relation to her three children who are represented by their guardian ad litem...
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...352; sub nom Re L (sexual abuse: standard of proof) [1996] 1 FLR 116, CA. S (children) (termination of contact), Re[2004] EWCA Civ 1397, [2005] 1 FCR 489. T (children in care: contact), Re[1997] 3 FCR 73; sub nom Re T (minors) (termination of contact: discharge of order) [1997] 1 All ER 65,......