S (Children )
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LORD JUSTICE MAURICE KAY |
| Judgment Date | 21 September 2004 |
| Neutral Citation | [2004] EWCA Civ 1397 |
| Docket Number | B1/2004/1123 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 September 2004 |
[2004] EWCA Civ 1397
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRIGHTON DISTRICT REGISTRY
(HIS HONOUR JUDGE LLOYD)
Royal Courts of Justice
The Strand
London
Lord Justice Thorpe and
Lord Justice Maurice Kay
B1/2004/1123
MISS RUTH KIRBY (instructed by Messrs McKenzies, London N9 9DU) appeared on behalf of THE APPLICANT
MR LESLIE KEEGAN (instructed by the Legal Department, London Borough of Enfield) appeared on behalf of THE LOCAL AUTHORITY
MR JEREMY ROSENBLATT appeared on behalf of THE GUARDIAN
Tuesday 21 September 2004
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. It was a London case, but because of the pressure on the lists His Honour Judge Lloyd in Brighton was asked to take the case and valiantly accepted. There was a nine day time estimate which in the event turned into sixteen days. This unexpected expansion, which seems in part to have resulted from acrimony between the professionals involved in the case, led to the truncation of the final stages so that the judge did not have the benefit of oral submissions but only written submissions from some of the parties.
The written submission of the guardian for the children and for the local authority is not available to us. Mr Rosenblatt for the guardian tells us that the local authority's position in relation to future contact was contained in her penultimate report dated 20 October 2003, where she recommended that the court make a section 34(4) order with respect to the one child "O", so that if agreements are not kept by MS in the future the local authority will be able to terminate contact without a further application to the court. "Hopefully, the existence of a section 34(4) order which will assist [MS] in understanding the need to fully co-operate in the future" was the last sentence of the recommendation. Mr Rosenblatt tells us that the guardian's position never varied thereafter. That was her final submission either expressly or implicitly.
Mr Keegan for the local authority has surveyed his final written submissions. All that he can find there is the request for an order under section 34(4), but there is no supporting reasoning. Miss Kirby, who has appeared throughout for MS, draws attention to her final submissions which in paragraphs 162 and 164 argue extensively that in the circumstances a section 34(4) order was not appropriate and specifically sought a positive order allowing the mother contact not less than six times per year for not less than six hours on each occasion.
That was the position before Judge Lloyd. The order which resulted after he had considered the written submissions was in conventional form as sought by the local authority and supported by the guardian: (1) that there be a care order to the London Borough of Enfield in relation to all children; and (2) that there be leave to the London Borough of Enfield to refuse contact between the mother and the children.
An application for permission to appeal both orders was brought. Wall LJ on paper refused the application for permission to appeal the care orders for reasons which he set out fully and dated 12 July 2004. Miss Kirby has not sought an oral hearing to argue against that provisional conclusion. However, Wall LJ said that the application for permission to appeal paragraph 2 of the order below, namely the section 34(4) order, should be listed on notice to the parties with appeal to follow if permission is granted. It is that oral hearing that is before us today.
In his judgment Judge Lloyd deals with Miss Kirby's submissions as to the nature and extent of contact at page 32 when he said:
"In considering the matter carefully I think the contact should be four times a year. I say that because the mother herself suggests it should be in the holidays and I think it should be in the holidays so that it can be a fuller and more meaningful contact for the child….. I also agree with the care plan that it should be activity based and that it should be supervised by the local authority, although as time goes by they may possibly feel able to reduce or lift that supervision. I am of the view that it should be 10am until 4pm which gives the six hour period that the mother seeks. If [O] is not returned to her and is not going to be, it makes the need for him to have a full activity based time with his mother that he can enjoy and get the full benefit of. Therefore I grant the 34(4) in relation to him on that basis."
The hearing before us this morning has been brief because the point taken by Miss Kirby is a short point and one that is seemingly...
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...future." That principle was reiterated in the later case of Re T [1997] 1 FLR 517 and more recently in Re S (Care: Parental Contact) [2004] EWCA Civ 1397. 7 Mr Horrocks concludes his submissions by expressing the guardian's neutrality, but by emphasising that there have been considerable c......