Re T (Children in Care: Contact)
| Jurisdiction | England & Wales |
| Judgment Date | 1997 |
| Date | 1997 |
| Year | 1997 |
| Court | Court of Appeal (Civil Division) |
SIMON BROWN, LJ AND HOLMAN, J
Child – care orders made – further order granting leave to local authority to terminate contact with children – application to discharge leave order – principles to be applied.
On 16 December 1994, care orders were made in respect of four children. At the same time, leave was granted to the local authority to terminate contact between the three older children and their parents, pursuant to s 34(4) of the Children Act 1989. On 22 August 1995, the mother applied for an increase in the level of contact with two of the children. However, she later amended her application to seek the discharge of the section 34(4) order. The mother contended that the local authority's care plan for the two children had changed from that which was before the court in December 1994, and it was no longer appropriate to leave the local authority to decide when contact should cease. The local authority was reconsidering the question of the adoption of one child, considering instead a therapeutic residential placement. The second child was already subject to such a placement, and no adoption placement was in sight. The mother's application was heard, by the original Judge, on 10 April 1996. The Judge concluded that the mother had failed to satisfy him that there had been such a change in circumstances relating to both children as to justify the reversal of his earlier decision to grant leave to the local authority to terminate contact. The mother's application was accordingly refused.
The mother appealed.
Held – Allowing the appeal in part (by discharging the section 34(4) order for one of the two children only): The court had to approach the case on the basis that the original section 34(4) order, which had not been the subject of an appeal at the time, was properly made. Although the correct starting-point for the determination of an application to discharge a section 34(4) order must be a consideration of the circumstances in which it had been appropriate to make the order in the first place, it was not for the court to give definitive guidance as to when such an order would be appropriate. The court could go no further than to indicate that a section 34(4) order should not be made while there remained a realistic possibility of rehabilitation of the child with the person in question, or merely to guard against the possibility that circumstances might change in such a way as to make termination of contact desirable. On an application for discharge of a section 34(4) order, the child's welfare remained the paramount consideration. Courts were entitled to screen out what were essentially disguised appeals against the original orders. For the application to succeed, there had to be a demonstrable material change of circumstances, occurring between the making of the order and the application to discharge it. The court
should initially have two main interlocking considerations in mind: first, the extent to which circumstances had changed from when the order was made, and second, bearing those changes in mind, the extent to which it now seemed appropriate to reinvestigate the central question. The greater the apparent change in circumstances, the more intensively would the court be prepared to reconsider the desirability of leaving the section 34(4) order in place. As far as the two children the subject of the appeal were concerned, the plan for the first child had not changed and was actually further advanced than when the section 34(4) order was made. The Judge was entitled to conclude that the question of contact with that child should be left to the good sense and integrity of the local authority. As far as the second child was concerned, the local authority now agreed that the section 34(4) order should be discharged, considering that it was no longer likely that circumstances warranting a refusal of contact would prevail in the foreseeable future. Although the discharge of the order was opposed by the guardian ad litem, it was appropriate to discharge it, leaving it to the local authority to reapply for a further such order, if and when needed. It was not necessary to reach a view upon the justifiability of the Judge's decision not to discharge the section 34(4) order in respect of the second child. It was sufficient to say that the argument for the discharge of that order was clearly stronger, even on the facts as then known, than in the case of the first child.
Statutory provisions referred to:Children Act 1989, ss 1, 22, 34, 91, 105 and Sch 2, para 15.
Cases referred to in judgment:B (Children in Care: Contact), Re[1993] 1 FCR 363.
B (Minors) (Application for Contact), Re[1994] 2 FCR 812.
F (Children in Care: Contact), Re[1994] 1 FCR 584.
L (Minors) (Care Proceedings: Appeal), Re[1996] 2 FCR 352.
W (Children in Care) (Contact and Parental Responsibility Orders), Re[1993] 2 FCR 427.
Roderic Wood, QC and Diane Barnett for the mother.
Stephen Cobb for the guardian ad litem.
Michael Liebrecht for the local authority.
LORD JUSTICE SIMON BROWN.This is a mother's appeal with the leave of the Judge below against the order of Judge Michael Baker in the Chichester county court on 10 April 1996 refusing her application to discharge a section 34(4) order which he had earlier made on 16 December 1994 when making care orders in respect of all four of her children.
The appeal is confined to consideration of the middle two children only: S, born on 14 December 1985 who is now therefore 10, and B, born on 21 January 1989, now 7.
The chequered history of this family appears in the greatest possible detail from the papers before the court. It makes, alas, sorry reading indeed. Suffice it for present purposes to pick up the story on 16 December 1993 when interim care orders were made for the three elder children and an interim supervision order was made for the youngest child, J. It was at this time too that S moved to foster parents, the Fs.
On 3 September 1994 B too moved to the Fs. The move did not work out, however. Put shortly, both boys told of sexual misbehaviour including buggery between the three elder children. In October 1994 B was moved to new foster-parents, and was excluded from school.
On 18 November 1994 the local authority applied for care orders and for leave to terminate contact between the parents, then still together, and the three elder children under the provisions of s 34(4) of the Children Act 1989. Those applications were the subject of a five-day hearing before Judge Baker in December 1994. The information before the court on that occasion was, so far as concerned S and B, essentially this. The local authority plan for S was that he be placed in the long-term for adoption with no parental contact, a pre-adoptive placement to be identified at an early stage. The plan for B too was for an adoptive placement in the long-term with no parental contact but with an initial residential placement for at least a year with intensive therapy. As to parental contact prior to placement the local authority planned a reduction. Mother had previously been enjoying two hours supervised contact twice per week with each child. This was planned to be reduced to one visit each two weeks for a month, then one visit per month for two months, then, if necessary, one visit each two months until the children were ready for their respective placements and a final contact. So far as the guardian ad litem was concerned, she recognized that S had a good understanding of his natural family but thought it probable that adoption would be in his best interests; she found it difficult to be sure about a future adoptive family placement for B until he had received therapy and his behaviour had become acceptable. She said:
"I have carefully considered the applications to refuse contact in respect of S, B ... this has not been an easy decision to make at this stage. I am satisfied that the local authority will continue with their plans as presented, but situations do change; it may be more beneficial in the future for some form of contact to continue. However, it may well become necessary to stop contact during any therapy that is undertaken, or indeed if there are problems with contact. The reviews will monitor this ... I therefore also support the applications for permission to refuse contact in respect of S, B ..."
In giving judgment, Judge Michael Baker said this:
"In respect of [S], he has been with foster-parents for some time. Fortunately ... he appears to have settled well. He is less disturbed than [A] [the eldest child] or [B] but clearly, from the history, he has gone through a traumatic childhood and what is of great cause for concern is the disclosures of buggery and that he learnt it from watching his parents. He also told the guardian ad litem that things had happened at home which he could not tell. ... [S] had indicated that he was concerned about his own safety and the incident on the pier is no doubt indelible on his mind. [This was a reference to an incident in December 1993 when S suffered a broken heel by jumping off Worthing Pier. I am satisfied that he has suffered significant harm due to the care or lack of it, from his parents. I therefore make a care order.
In respect of [B], he is a very disturbed child. The social worker said that
he was so badly behaved she had difficulty in assessing him. He has alleged physical and sexual abuse by his brothers, and sexual abuse by his mother. He has been excluded from school and is now at a special school. I am satisfied that he has suffered significant harm due to the care, or lack of it...
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