[New search]
[Context
]
[View without highlighting]
[Printable RTF version]
[Help]
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (
CIVIL
DIVISION)
ON APPEAL FROM PORTSMOUTH COUNTY COURT
(
HIS
HONOUR
JUDGE SHAWCROSS)
|
|
Royal Courts of Justice Strand London, WC2
|
|
|
2 February 2005 |
B e f o r e :
LORD JUSTICE THORPE
LORD JUSTICE POTTER
LORD JUSTICE SEDLEY
____________________
|
H (CHILDREN) |
|
____________________
(Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
____________________
MISS SARAH EARLEY (instructed by Legal Practice,
Hampshire
County Council) appeared on behalf of the Appellant
MR JONATHAN SAMPSON (instructed by Child Law Partnership) appeared on behalf of the
Respondent
Mother
MR PETER
HORROCKS
(instructed by Child Law Partnership) appeared on behalf of the Guardian
____________________
HTML
VERSION OF JUDGMENT
____________________
Crown Copyright ©
Wednesday, 2 February
2005
- LORD JUSTICE THORPE: Miss Earley, in a most able and persuasive submission, challenges the order of
His
Honour
Judge Shawcross, sitting in the Portsmouth County Court,
refusing
the local authority's application for an order under section 34(4)
terminating
contact
between the parents and the children. The judge
had
to consider the future of two children - Celine, who is 5; and Steven, who is 3. There was an issue as to their future care and management, the parents contending that they were acceptable long-term carers, despite a long
history
which included the making of a care order in
relation
to Celine. The parents sought the discharge of that order and the local authority sought an order in
respect
of the younger child.
- It was a case with a very considerable
history,
which the judge considered carefully over the course of the first 16 pages of
his
judgment.
He
then turned to consider the disposal in the light of
his
findings as to past events.
He
explained over the following 8 pages of
his
judgment why it was that both children
had
to be committed to care and to a care plan which provided for their adoption. Only at the end of
his
judgment did
he
come to consider the application for a section 34(4) order.
- At the outset
he
identified what was the basis of the local authority's application. It was not a case in which they were saying that
contact
should
terminate
forthwith, or indeed within the foreseeable future. It was not a case in which it was said that parental
contact
should cease absolutely once an adoptive family
had
been identified and the process of introduction and placement commenced. The judge was quite plain that this was a case in which there should be post-adoption
contact
to the parents; so
he
identified the local authority's intended use of the section 34(4) order in these terms:
"Why do they want it? They say that as these children approach adoption it is necessary to enable them to move to the new placement to prevent them effectively seeing their parents."
So the local authority sought this powerful order for the
relatively
restricted
purpose of inserting a suspension into what was foreseen to be a long-term continuing
relationship
between parents and children.
- The judge
refused
them their order for a number of clearly stated
reasons.
The first was that there
had
been no adopters identified.
He
said:
"It seems to me that we are some way off adoption, if indeed we ever get there".
His
second consideration was that, as I
have
already stated, this was a case where the expert evidence supported
contact
to the parents as not detrimental to the interests of the children in the long-term. This therefore was not a case for closed adoption. The third consideration was that these were parents who were not predictably disruptive, either deliberately or even subconsciously, of a future adoptive placement. Fourthly, the judge made the point that, whilst the local authority's
responsible
use of the power was not in doubt so long as the current social work team were in charge,
he
could not
have
the same confidence once the
responsibility
moved to the permanence team, who would be
responsible
for implementing the introduction and placement. Finally, the judge made the attractive point that were
he
to make a section 34(4) order it would be sending out the wrong signals to all presently engaged with the case and also to prospective future adopters and that was something that would be contrary to the interests of the children.
- In passing, the judge
referred
to
Re
G, which Miss Earley in the course of
her
submissions
has
said provided no foundation at all for the decision ultimately taken by the judge.
- We
have
this morning
heard
from Mr
Horrocks,
for the guardian, who
has
drawn attention to the line of authority that seems to be nearest to determining any principle for the present appeal. The case of
Re
L [1996] 1 FLR 116 was primarily concerned with standard of proof in sex abuse cases, but towards the end of
her
judgment Butler Sloss LJ (as she then was),
having
cited a passage in the judgment below, said:
"The order giving leave to
terminate
contact
was contrary to the local authority's present intentions and to the indications made by the judge as to the possibility of
rehabilitation.
Section 34(1)
requires
a local authority to allow the child in care
reasonable
contact
with
his
parents unless by s 34(4) the court authorises
termination
of such
contact.
A s 34(4) order in our view is appropriate where there is no likelihood of
rehabilitation
and the child is, for instance, to be placed for adoption or with foster parents without continuing
contact
with the natural family. In the context of this case it was surprising that a s 34(4) order should be made and to do so to save a further application to the court if the circumstances should change
had
the effect of
handing
over to the local authority the
residual
responsibility
still vested in the court. It was premature to make an order which was not to be implemented in the foreseeable 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.
- Mr
Horrocks
concludes
his
submissions by expressing the guardian's neutrality, but by emphasising that there
have
been considerable changes of circumstance, all of which seem to militate against a section 34(4) order. Therefore,
he
says, any
reconsideration
should be in the county court, either on
remission
or on a fresh application by the local authority.
- Mr Jonathan Sampson, who
represented
the parents below,
has
pro bono provided the court with a very full and
helpful
skeleton. Additionally,
he
has
appeared today to support that skeleton, if necessary.
He
is in that situation since the parents
have
not collaborated with
his
former instructing solicitors in seeking public funding for this appeal. I would like to
record
Mr Sampson's valuable contribution and to pay tribute to
his
responsibility
in approaching the court and offering assistance.
- What, then, of Miss Earley's submissions? She says that the judge fell into fundamental error because
he
did not sufficiently
recognise
that to
refuse
them the order sought was to jeopardise an adoptive placement, or to make it more difficult for the local authority to achieve, or to delay its achievement. For, she said,
having
identified an adoptive family, the local authority would be obliged to
return
to the court to seek the section 34(4) order all over again with consequential litigation delay which would impact upon a successful placement.
- It certainly cannot be said that the judge ignored that factor.
He
said at the foot of page 26 of
his
judgment:
"I know the Local Authority may find it easier, and will find it easier, to find adopters if they
have
a s 34(4) order. I am sorry about that. Nevertheless, it is something I am bound to accept."
- In the end, it seems to me that this was an impeccable judgment, clearly explaining the exercise of a judicial discretion. The function of the judge in upholding the Parliamentary intention of section 34 and in granting section 34(4) orders
restrictively
and stringently is an important one. This case is not directly covered by the three authorities that I
have
cited, for the local authority were able to go beyond simply saying that they might need the order one day in order to achieve placement. They were saying specifically that they would certainly need it in order to ensure the safe passage from foster care to adoption.
However,
in my judgment, that fine variation on the theme does not carry this case outside the principles to be extracted from the three cases cited. The judge was effectively applying those principles impeccably in questioning the appropriateness of such a powerful order for such an uncertain and limited future use. Miss Earley
has
said that, rather than dismissing the application,
he
might
have
adjourned it. Alternatively she says, ingeniously, that
he
might
have
granted the order but written in protection for the parents by applying conditions under section 34(7). That seems to me no criticism of the judge, nor any basis for this court to interfere, given that
he
was not invited to take either of those courses below. Miss Earley said she did not
have
much opportunity because she was not forewarned as to what was to come.
However
I do not think that that is a complete answer. The local authority might well
have
perceived for themselves, as Miss Earley now perceives, the opportunity to yolk subsections (4) and (7) in order to achieve the bespoke
result
that the local authority essentially strove for.
- For all those
reasons
I am not persuaded, despite Miss Earley's eloquence, that the judge in any way misdirected
himself
or failed in
his
execution of the discretionary balance. I would dismiss the appeal.
- LORD JUSTICE POTTER: I agree.
- LORD JUSTICE SEDLEY: Lord Atkin once
remarked
that justice and convenience are frequently not on speaking terms. Judge Shawcross was plainly alive to this.
He
was rightly concerned that leaving
contact
in the
hands
of the local authority might allow the best interests of the children to take second place to the practicalities of finding adopters with the minimum of impediment.
- The grounds on which Miss Earley persuaded Ward LJ, contrary to
his
initial view, and Rix LJ to grant permission to appeal candidly placed the local authority's practical difficulties in the foreground.
- In my view, although arguable, this is not an acceptable approach. As this court made clear in
Re
B Minors [1993] 1 FLR 543 at 551 the practical convenience of the local authority matters, but only to the extent that to impede it would be contrary to the best interests of the children. On Judge Shawcross's findings this was not such a case. It was a case in which the children needed as much continued
contact
with their natural parents as was compatible with the long-term plan for them. The section 34(4) order would not
have
prevented this, but it would
have
transferred the discretion to the local authority. It is not surprising that the judge preferred to ensure that the lifeline of parental
contact
should not for the time being be placed at risk of severance.
- I too would dismiss the appeal.
(Appellant's publicly-funded costs to be the subject of assessment; no
reporting
restrictions).
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: https://www.bailii.org/ew/cases/EWCA/Civ/2005/318.html