Re T (Termination of Contract: Discharge of Order)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN |
| Judgment Date | 21 November 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J1121-1 |
| Date | 21 November 1996 |
| Docket Number | CCFMI 96/0857/F |
| Court | Court of Appeal (Civil Division) |
[1996] EWCA Civ J1121-1
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHICHESTER COUNTY COURT
(HIS HONOUR JUDGE BAKER)
Royal Courts of Justice
Strand
London WC2
Lord Justice Simon Brown
Mr. Justice Holman
CCFMI 96/0857/F
MR. R WOOD QC & MS D BARNETT (Instructed by Messrs. William Macdougall & Campbell, Worthing) appeared on behalf of the Appellant
MR. S COBB (Instructed by Messrs Bennett Griffin & Partners, Worthing) appeared on behalf of the Guardian ad Litem
MR. M LIEBRECHT (Instructed by Legal Department, West Sussex County Council, Chichester) appeared on behalf of the Local Authority
Thursday 21 November 1996
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 10th April 1996 refusing her application to discharge a section 34(4) Order which he had earlier made on 16th 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 14th December 1985 who is now therefore 10, and B, born on 21st 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 16th 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 3rd 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 18th November 1994 the first respondent 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 section 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 recognised 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, from his parents. I therefore make a Care Order……
In respect of contact matters, the local authority and the Guardian ad Litem argue that to enable the children to settle it is important for the local authority to be given the right to terminate contact, if it is thought necessary. That places a great responsibility on the local authority. The parents say that it is not necessary to do that, but it is right to maintain a link with the parents.
It is a difficult decision but the weight of evidence is in favour of the local authority. The alternative would be for the local authority to come back at the time when contact, it is thought, should be terminated. There should be flexibility about contact, particularly when the children are undergoing therapy, and it is not practical for the local authority to keep coming back to Court. I put my trust in the local authority to deal with it appropriately. Therefore the local authority have leave to terminate contact between the parents and S, B ………."
It is necessary now to indicate something of what happened to the children between December 1994 and April 1996 when the matter returned before Judge Michael Baker upon the mother's application made on 22nd August 1995. This application, one should note, was put in terms that Mrs T "wish [ed] to increase the present level of contact to S and B". As, however, Judge Baker observed at the outset of his judgment on 10th April 1996, the application had by then been amended to seek revocation of the section 34(4) order made in December 1994. I should further indicate that in March 1995 Mr and Mrs T had separated, Mr T having reached the view that the children should be given a new start in life without contact with him and, indeed, that the mother's application too should be opposed. Father played no part in this appeal.
On 20th January 1995 B had been placed in a small specialist residential children's home where he remains to this day. Following the making of the December 1994 Care Order, B had had two fortnightly sessions of contact with his mother, and thereafter supervised contact for one hour a month at a family centre. As to S, he had continued to live with the Fs until January 1996 when he moved to a new foster placement, the Js. It is convenient to note at this stage that as recently as 11th October 1996 S moved from the Js to yet further foster parents. S, like B, had two fortnightly sessions of contact following the making of the Care Order and then joined B in the monthly contact session. In April 1996 S was requesting more contact.
What, then, was the revised care plan for each child in April 1996? So far as S was concerned, although adoption had been approved by the local authority Adoption Panel on 11th July 1995, no suitable permanent placement had been found. Consideration was being given to finding him a therapeutic residential setting. The local authority were continuing to talk of "appropriate contact arrangements" for S, and their reports were directed to countering mother's application for increased and unsupervised contact. As to B, the local authority had on 9th February 1996 stated:
"Contact has been maintained at its present level for B's benefit and to give him a sense of continuity and reassurance during a period of his life when he is in transition and when he does not yet have new parental relationships to which he can commit himself. I think that four weekly contact is adequate for this purpose: more frequent contact will confuse and unsettle B, and an increase in frequency at this point would give him a very misleading message about the future and one which I think he would find disturbing…… Our eventual aim will be to terminate contact when we are closer to planning a move to a permanent family. It is impossible at this moment to predict precisely when this stage will be reached. Before contact is terminated it may well be helpful to reduce its frequency. Quite apart from the progress of the adoption plan it may also become necessary to reduce the frequency of or to terminate B's contact in order to meet his developing emotional and therapeutic needs."
By the date of the hearing, we are told, the local authority had in fact suspended contact between mother and B with a view to final termination.
The Guardian ad Litem concluded her report of 1st April 1996 thus:
"It remains essential...
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