Re S (A Minor) (Access Application)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE STAUGHTON,LORD JUSTICE DILLON |
| Judgment Date | 31 July 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0731-10 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 90/0732 |
| Date | 31 July 1990 |
[1990] EWCA Civ J0731-10
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(The President Sir Stephen Brown)
Royal Courts of Justice
Lord Justice Dillon
Lord Justice Butler-Sloss
and
Lord Justice Staughton
90/0732
MR. RODERIC WOOD (instructed by the Director of Legal Services of the London Borough of Hammersmith and Fulham) appeared on behalf of the Respondent (Appellant).
MR. JOHN REDDISH (instructed by Messrs Redfern & Stigant, Kent) appeared on behalf of the Appellant (Respondent).
MRS. VERA MAYER (instructed by Messrs Wilfred McBain) appeared on behalf of the Guardian ad Litem.
This is an appeal from the decision on 19th March 1990, of the President sitting in the Divisional Court of the Family Division when he allowed an appeal from the decision of the Hammersmith Juvenile Court made on 14th September 1989. The mother appeals to this court in respect of an application for access to her son "A" born on 20th October 1985 and now four and three-quarters.
This case, as the President said, raises very sad and emotional issues."A" was born to a mother who was at his birth a drug addict, had been since the age of nineteen (she is now about 28) and was addicted to heroin. She was not married to or cohabiting with "A's" father. As a result of her addiction "A" was almost immediately placed on the At Risk Register. In early 1986 Tower Hamlets Juvenile Court made a supervision order, but the mother failed repeatedly to cooperate and on 13th October 1986, the supervision order was discharged and the child committed to the care of the local authority."A" was one year old and has not since lived with his mother. He has been with his present foster mother since April 1987, with whom it is not intended that he should live permanently. The mother continued a pattern of failure to cooperate with social workers and it is a feature of this case that in every respect other than the serious question of drugs, there is no criticism of the mother. But the consequences of the addiction rendered her unable to cooperate with social workers and unfit to care for the child.
Efforts made to arrange organised access were largely unsuccessful, but, unknown to the social worker, the mother was having informal access at the foster mother's home. The mother is a member of a large and close-knit West Indian family, entirely respectable and disapproving of her drug addiction. In the Autumn of 1987 there was a family meeting between social workers and the extended family, and one member of it, Shirley, was investigated by the local authority as a potential adopter. In July 1988 the family met the social workers at a second family meeting and the proposal to adopt by Shirley was withdrawn and no other proposal made. There was a disppute between the family version set out in the guardian ad litem's report and a senior social worker as to whether the family were told that there might be other options for "A". The suggested lack of investigation by the local authority of wider possibilities within the family was much criticised by the guardian.
The local authority had already decided that "A" should be placed for adoption and they were looking for potential adopters. In August 1988 the mother was arrested and charged with conspiracy to supply heroin. She pleaded guilty and on 15th December 1988 was sentenced to three years imprisonment.
On 18th January 1989 the local authority served the mother with formal notice of termination of access and the mother applied to the juvenile court for an order for access. The Hammersmith Juvenile Court heard the access application for two full days in August and September. The local authority, and the mother and the child were all represented. The justices decided that the mother should, while in prison, have monthly access for one hour. There was no stay on the order pending appeal to the President and the child saw his mother in prison or at the foster mother's home on six occasions before the hearing of the appeal, after which access was terminated. We were, at the hearing of the appeal, given some agreed facts, which included the release of the mother on licence on 12th April 1990 and that the local authority have identified a suitable family as potential adopters.
The issue in this appeal is whether the justices were justified in ordering access between the mother and "A", the effect of which was almost certain to impede an effective placement of the child with prospective adopters. The President found that they were plainly wrong to have come to that conclusion, and allowed the appeal. Was he right to do so?
The issue raises what has been called by Sheldon J. in Re M [1988] 1 FLR 35 at p.38 "a jurisdictional dichotomy" and it arises in this way."A" is in the care of the local authority which has, by the provisions of the Child Care Act 1980, s.1 a general duty to promote the welfare of the child. It has the sole duty and power to deal with "A's" long-term future welfare. In pursuance of the statutory obligation it has made plans for "A's" future—that he should be placed for adoption and that there should be no more access to him by his mother or the extended family. By an amendment to the Child Care Act 1980 the local authority is obliged by s.12B to give the mother formal notice in writing of its intention to terminate access. The mother is then entitled by s.12C to apply to the juvenile court for an access order (which this mother did). The justices may then make an access order in respect of a child in care. This is a limited right to deal with the future welfare of the child, in that they may not make any order which formally requires the local authority to reconsider their long-term plans, such as attempts at rehabilitation or changes of caretaker. The only ways under the present legislation that wider issues might be formally reconsidered would either be by the local authority instituting wardship proceedings or by an application by the parent to the justices for a revocation of the care order. In this case, that would have been an unrealistic application when the mother was at the time of both previous hearings in prison.
Nonetheless, the reintroduction of access between parent and child is likely to have a major impact on the child's short-term welfare and, if adoption is proposed, on the long-term welfare also. A major consideration in the grant or refusal of acccess is the purpose of it. Is it intended to lead to reuniting the child with the parent, in which case the access is likely to be frequent and designed to promote and increase the strength of the relationship between parent and child? Alternatively, access may be intended to give the child the opportunity to remain in contact with the parent while recognising that the child will make his home with another family. In the second instance, the amount of access will be much reduced and designed to give the child knowledge of the natural family but not to interfere with or frustrate the need for the child to settle and flourish in an environment which does not include his parent as a major figure. Experience has shown that, particularly with young children where rehabilitation is ruled out, frequent access to a parent is likely to be confusing and unsettling and consequently not in the child's best interests. The welfare of the child in an access application, as in other applications, is the paramount consideration. It is also a fact of life that those who put themselves forward as potential adopters generally do not want the child they adopt to have a continuing relationship with the natural family. This was the view of the family originally selected for "A" by the local authority. They withdrew for several reasons, and the prospect of access by the mother was one of them.
In Re "M" the same issue arose. Sheldon J. said at p.38:
"These difficulties, which are common to many access questions, may well be enhanced where a juvenile court has to consider, in an appeal under s.12C of the 1980 Act, whether and to what extent to restore access to a child in care which has been terminated by a local authority upon the ground that, in the child's interests, no further rehabilitation should be attempted. A possible result of this jurisdictional dichotomy, indeed, is that the juvenile court, by allowing access, will effectively scotch or make more difficult of fulfilment the plans for the child's future that the local authority have made in the exercise of the discretion entrusted to them by Parliament.
Such a result, moreover, could be most unfortunate for the child and severely damaging to his future welfare—at least by seriously delaying whatever might be the solution eventually chosen for him. Clearly, the juvenile court should not risk creating such a situation without considering fully and weighing carefully the authority's reasons for the course they are advocating— a fortiori if the authority is supported in the conclusions by the child's guardian ad litem."
The Court of Appeal found that the juvenile court in that case had reached its decision without any proper investigation or consideration of a number of vital factors and deprived themselves of the opportunity of investigating properly whether it was a situation in which there was no realistic hope of rehabilitation and in which the child's future lay with a permanent substitute family—an investigation which was vital to the decision whether or not to restore access to the parents.
It was not seriously contested before the justices in this case that, prior to her prison sentence, the mother could...
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