Re T (Interim Care Order: Arrangements for Contact)

Hearing date: 23 April 2024

Approved Judgment

This judgment was handed down remotely at 10.30am on 7 May 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

The Honourable

Introduction

This is an appeal from a decision of His Honour Judge Greensmith (‘the Judge’) sitting at the Family Court in Liverpool on 22 March 2024. The decision under appeal was made within ongoing public law proceedings under Part IV of the Children Act 1989 (‘CA 1989’).

Following a short contested interim hearing, the Judge made a case management order which contained a number of recitals, one of which required the Appellant local authority (the ‘Local Authority’) to arrange direct (i.e., face-to-face) contact three times per week between the subject child, T, aged 3 ¹/₂ years, and her mother, the First Respondent (‘the mother’). This contact provision (both as to frequency and form of contact) had been opposed by the Local Authority and the Second Respondent (‘the Children's Guardian’).

On 26 March 2024, the Local Authority sought permission to appeal on an urgent basis, and a stay of the direct contact order. Both forms of relief were granted by Lord Justice Baker on 27 March 2024.

At the conclusion of the hearing of the appeal, we announced that the appeal would be allowed, the relevant recitals contained in the order of the 22 March 2024 in relation to contact would be set aside, and the case would be remitted forthwith for urgent consideration of interim contact and case management to HHJ Parker, the Designated Family Judge for Merseyside and Cheshire. In view of the position taken by the mother at the appeal hearing (see §26 below), we felt it unnecessary to make any interim orders for contact ourselves.

For the purposes of the appeal, we had the benefit of written and oral submissions of counsel on behalf of the Local Authority and the Children's Guardian, and leading and junior counsel for the mother. We had a full transcript of the 22 March 2024 hearing, which contained within it the ruling under challenge.

Factual background

T has been the subject of an interim care order since 27 February 2024, and is currently placed with her maternal great aunt. T's mother is twenty years old. T's father's whereabouts are currently unknown and he has so far played no part in these proceedings.

It is unnecessary for me to rehearse the full background history relevant to this application. For present purposes, it is sufficient to record that on 1 January 2024 the mother reported her former partner (Mr A) to the police, alleging that he had sexually abused T, some twenty months earlier. She supported her allegation by showing the police a sexually explicit photograph stored on her mobile phone; she handed her phone to the police for analysis. That analysis revealed the presence of a second, recently deleted, photograph, taken a matter of minutes before the photograph implicating Mr A, which allegedly also implicated the mother. Potentially incriminating text messages were also discovered. The mother and Mr A were both arrested and interviewed under caution. Initially the mother was remanded in custody, but from 10 January 2024 was released on conditional bail; one of the conditions was, and is, a prohibition on contact with T save as ordered by the Family Court.

The mother and Mr A were charged with three offences: (i) under section 7 of the Sexual Offences Act 2003 (sexual assault of child under 13, namely T), (ii) under sections 1(1)(a) and 6 of the Protection of Children Act 1978 (taking an indecent photograph or pseudo-photograph); and (iii) under section 160(1), (2A), and (3) of the Criminal Justice Act 1988 (possession of indecent photograph or pseudo-photograph). The mother is due to stand trial in relation to these alleged offences later this year. Mr A has pleaded guilty to the offences and awaits sentence following the mother's trial.

On the arrest of her mother, T initially stayed with her maternal great grandmother before moving to her maternal great aunt, where she continues to reside; for reasons unconnected with this appeal, T had in fact previously lived with her maternal great aunt for over a year (from the summer of 2021 to the summer of 2022).

Initially the family placement with the maternal great aunt was arranged by the Local Authority with the agreement of the mother under section 20 CA 1989. On 7 February 2024, the Local Authority issued an application for a care order, and the case was allocated to this Judge; that application came before the court for initial case management hearing on 27 February 2024, and an interim care order was made by consent. By the time of the first hearing, the Local Authority had taken no steps to facilitate any contact between T and her mother. Mr Heaney conceded before us that more could and should have been done to assess the risks of, and/or potential for, contact in one form or another, and to communicate the authority's position to the mother, in accordance with the authority's duties under Schedule 2 para. 15 CA 1989 (see §29 below). We were told that the Local Authority felt that it could not go behind the bail condition that any contact needed to be authorised by the Family Court.

At the hearing on 27 February 2024, the Judge gave a clear indication of his view about the frequency and form of contact going forward. I highlight his views as they appear in the relevant recitals (which were recorded as (b) and (c) in the order, and are reproduced below) to the order which he made on that day. In light of those judicial indications, the parties withdrew from court and reached agreement as to the plan for contact; Mr Heaney referred to this as the ‘roadmap’. This agreement as to interim contact (recitals (b) and (c)) is as follows:

“… (b) The court was concerned that [T] had not had contact with her mother for some considerable time and expressed a view that contact should be taking place on a professionally supervised basis around 3 times per week. The court directed the local authority to facilitate contact forthwith. The court was further concerned that the local authority had failed to share information about the child's well being and progress with her mother. The guardian was equally concerned.

(c) As such, the local authority confirmed that in relation to contact;

i. Preparatory work with [T] would take place 4th March 2024;

ii. There will be a supervised FaceTime [videocall] call between [T] and the mother 6 ^th March 2024

iii. Direct contact will commence 8th March 2024, which from 11th March 2024 will be 3 times per week;

iv. The local authority shall actively review the contact arrangements and will ensure that the mother is kept informed of the child's welfare”. (Emphasis by underlining added).

As a result of the agreement, the ‘no order’ principle (section 1(5) CA 1989) was engaged.

A further case management hearing was fixed for 22 March 2024, and an Issues Resolution Hearing was fixed for a date in June 2024.

In accordance with the agreement recorded above, T was prepared for contact, and indirect contact (by videocall) took place on 6 March 2024. This contact was, in the view of the Local Authority, not successful; the notes of the contact (available to the Judge at the later hearing) refer to T as scared and tearful, she was resistant to seeing her mother, and asked repeatedly for the contact to end. Accordingly the Local Authority decided to defer the planned introduction of direct (face-to-face) contact (per recital (c)(iii)/(iv) above) and arranged further contacts by videocall on 12 March and 19 March 2024. There is some dispute about the success of these later contact sessions; it is the Local Authority's case that the contacts had been difficult and T had continued to be resistant to see and/or engage with her mother. On the 12 March 2024, T is reported to have referred to her mother several times as ‘naughty’, and called her a ‘monster’ and a ‘dinosaur’. The mother's case is that the contacts were improving in quality, and that by 19 March 2024, T was in fact unhappy about the contact coming to an end.

Given its assessment that the contact was proving distressing for T, on 21 March 2024 the Local Authority issued a formal application for an order under section 34(4) CA 1989; this statutory provision permits an authority to ‘refuse to allow’ contact between a child and their parent (see §31 below). In fact the application in this case sought the court's permission merely to “restrict” contact. The grounds for the application, contained within the form, were expressed to be as follows:

“Since the last hearing the Local Authority has facilitated three FaceTime [videocall] contact sessions between [T] and her mother. [T] has been resistant to attending contact and has been distressed following contact. In light of this the Local Authority wish to continue with weekly FaceTime [videocall] contact at this time and believe that to rush progressing contact would have an adverse impact on [T].”

The further case management hearing took place on 22 March 2024 as...