England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRISTOL COUNTY COURT
(Her Honour Judge Darwall-Smith)

		Royal Courts of Justice Strand London WC2 Wednesday 6th February, 2002

1. LADY JUSTICE HALE: This is the third hearing before me of an application for permission to appeal against orders made by Her Honour Judge Darwall-Smith on 11th December 2000 in care proceedings relating to K, who is now just 11.
2. The first hearing, on 7th June, was adjourned because the applicant father clearly needed time to study the judgment of the learned judge in some detail and I felt it necessary to give the local authority and the guardian ad litem, for K, the opportunity of updating the court on the progress that had been made, if any, since the order.
3. The second hearing took place on 12th July and I delivered a judgment on that occasion which contains the background to the application and need not be repeated today. The outcome of that hearing was that everybody was concerned to look ahead to try and find a means whereby contact could be re-established between K and her father, and everyone was content that the matter should be adjourned for a while for such attempts to take place.
4. We are now nearly seven months later and no for face-to-face contact has occurred or even been planned. Not surprisingly, the father is very concerned about that. His main concern I believe is that when he has seen K by chance and asked her if she wanted to see him or do something with him she has said yes, but then she has later expressed different views to her foster carer or her social worker and those are the views which are then acted upon by the local authority. He is very suspicious of the local authority and has always been so.
5. On the other hand, the local authority believes that it is acting partly in response to K's own wishes and feelings, but mainly in response to the advice given by Dr Shoebridge, who is responsible ultimately for the therapy that K is receiving. Dr Shoebridge in October wrote a letter defining four levels of contact through which progress might be made, beginning with supervised letter box contact, moving on to unsupervised letter box contact coupled with supervised contact with groups of her extended paternal family, moving on to supervised small group or individual meetings with her father and unsupervised telephone contact with her father, and culminating in unsupervised contact with her father. His view was that this should begin as soon as possible, and he pointed out that the father would be well advised to commit himself openly to K, to sustained regular level one contact, whatever the circumstances of these disputed care proceedings. Then K would have clear evidence of her father's unconditional concern and care for her. With that established, no doubt the hope was that matters would then proceed.
6. In parallel with that advice, I was very heartened to read in the papers dealing with events since last July that there had been mediation between the father and the local authority conducted through the auspices of a consultancy called Salus Associates. This culminated in a meeting on 18th January in which various things were agreed on each side. The father agreed that he would continue with consistent letter box contact with K by sending cards, letters, gifts or presents on a fortnightly basis. Social services agreed to work on building positive images of the father with K and her foster carers, to pass on news from the father and sensitively to encourage letter box reciprocation from K. They also agreed that the father would be invited to meetings that were focusing on K, and it was agreed that neither party would focus upon historical agendas. They both would focus on the agenda of the day. There were various agreements to as to communication between the father and the social services. Furthermore, the father agreed to inform his family, and in particular his brother, that social services would be making contact to arrange contact meetings with them. Social services agreed to inform the foster carers that contact meetings were going to be arranged between K and her extended family, and it was agreed that such contact meetings would need to be supervised and facilitated.
7. The child is represented by CAFCASS Legal Services in succession to the Official Solicitor who has been involved in the lengthy proceedings about her for many years now. Mr Marston confesses that there is concern that the progress has been so agonisingly slow, but on the other hand he is heartened by the progress, such as it is, that has been achieved.
8. The question for me is the destination of this application for permission to appeal. I made it clear last time that there was no real prospect of a successful appeal against the care order itself. It was with that knowledge that attention focused upon the future. My concern had always been that the care plan envisaged the re-establishment of contact between K and her father, recognising that the father had a great deal to offer K, as he has the other children in his life, and that if such contact could be re-established, in due course the long-term plan might, subject to K's continued progress with the psychological problems which had led to the care proceedings, result in her eventually returning to live with him.
9. Given that that was the care plan, the fact that when I saw the father first in June there had been no contact with K since the hearing in December and indeed since before that, I was of course concerned that an order which simply provided for reasonable contact was not going to achieve the desired result. Everything that has happened since then indicates very plainly that those fears were well placed. It is not for me to allocate blame or responsibility for what has taken place, because I am not hearing evidence. I cannot resolve any disputes of fact. But it seems to me that we have now reached the stage that some progress, however small, has been made. The agreement that was made on 18th January, if it were to be put into effect by both sides, would provide a very good platform for things to move forward. I am dismayed to learn that the father is now regretting, or thinking that he may regret, some of the things that he agreed to; because it is quite clear that things are not going to move forward unless he is prepared to commit to the first step, and then, once he does that, the local authority is prepared to move forward with the rest.
10. Given the state that things now are in, I see no real prospect of the Court of Appeal deciding that Her Honour Judge Darwall-Smith was wrong to make the orders that she made in December 2000. A further consideration is that she barred all future applications by either parent relating to K for a period of one year, in order to give K a period of peace without the pressures of litigation. That order has now expired and there is therefore no bar on either parent bringing further applications before a judge who is in a position to hear evidence and resolve disputes of fact. There is therefore no point in giving permission to appeal against that order.
11. For those reasons, the application for permission to appeal must be refused. Nevertheless, I repeat my very sincere hope and desire that both the father and his extended family and the local authority will move forward on the basis of the agreement that was made in January as rapidly as they possibly can, and that everybody is prepared to listen and take on board the concerns of the other side. It cannot be doing anybody any good for this matter to come back to court if that can possibly be avoided.
12. So, having expressed that hope, I have to refuse the application. I will of course make the usual order for a transcript of this judgment to be provided at public expense.
ORDER: Application for permission to appeal refused; the local authority to pay 50% of CAFCASS Legal Services' costs of this application. (Order not part of approved judgment)