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 PRINCIPAL REGISTRY
OF THE FAMILY DIVISION
(Her Honour Judge Mitchell)

		Royal Courts of Justice Strand London WC2 Friday 1st March, 2002

1. LORD JUSTICE ALDOUS: I will ask Lady Justice Hale to give the first judgment.
2. LADY JUSTICE HALE: This is a mother's adjourned application for permission to appeal against orders made by Her Honour Judge Mitchell on 13th December 2001 in care proceedings. These concern her younger son, T, who is now aged 10½. She also has an older son, D, who is aged 16½ and lives with her.
3. T lived with his mother all his life until June last year. They had moved to London from Manchester in the year 2000. There was a fire at their home on 20th May 2001. T was in the flat on his own and jumped from a first-floor balcony to escape it. After that the family were in temporary accommodation and there were various incidents. On 8th June 2001 the mother was arrested for a breach of the peace, and T was there at the time. The mother was admitted to St Mary's Hospital under section 2 of the Mental Health Act 1983. The diagnosis was bipolar affective disorder. Both children were accommodated.
4. Care proceedings were begun. There was no interim care order at the first hearing, but an order was made at the second because the mother withdrew her agreement for T to remain in accommodation. The local authority also wanted to refer the case to the Marlborough Family Service for an assessment. The mother was initially indicating her willingness to that, but in August she dispensed with her solicitors and began to act in person and was no longer willing to take part in that assessment.
5. The case was transferred to the Principal Registry of the Family Division. Some consideration was given to whether the Official Solicitor might be able to act on behalf of the mother. There were further contested interim care hearings. The final hearing was fixed for 13th May 2002 with a time estimate of five days. The case at present remains in the Principal Registry and has not been transferred to the High Court.
6. The mother appealed to Her Honour Judge Mitchell against the interim care order made on 14th November 2001 and against the fixing of the final hearing date. That appeal came before the judge on 13th December. By that date, of course, the November interim care order had expired. The mother had also applied for more contact.
7. Her Honour Judge Mitchell dismissed the appeal. She made a new interim care order without a further contested hearing, and she refused the application for more contact. She said:

"... it is quite clear to me that contact can present enormous difficulties for [T] from time to time, and in the circumstances it is not in his best interests, having applied the welfare checklist, to extend contact. It seems to me that this is a child who may be suffering during contact from time to time, and that the present level of contact is the contact which is beneficial to him, but any increase would bring with it a risk, in my judgment, having read and heard what I have heard."

8. The outstanding applications she directed to be heard on 18th March this year, when there is due to be a directions hearing in the Principal Registry.
9. The mother applied for permission to appeal to this court. It was urgent because of the advent of Christmas, and so I dealt with it on paper and refused permission. In refusing permission to appeal on the matter of contact, I stated that it was:

"... more difficult as there is obviously a close relationship between mother and child which must be preserved; also [T] will be concerned about his mother's wellbeing if he cannot see much of her. The local authority must therefore keep the situation under constant review and make the best arrangements they can. But the local authority was in a very difficult position after Fosterplus and the contact centre withdrew their services."

10. The mother renewed her application orally before me on 25th January 2002. She is still acting in person, but she has been given most helpful support and advice from the Royal Courts of Justice Advice Bureau. The local authority were represented at that hearing. There was, however, no report or information from the guardian. That is not a matter of blame for the guardian, it was just a matter of fact.
11. On that occasion I dismissed the application for permission to appeal against the interim care orders. They were by then water under the bridge, and there was also ample evidence to support the existence of the necessary threshold for interim care orders. I was, however, much concerned about contact, while fully recognising the difficulties facing the local authority. T is fostered out of London. The contact initially arranged was for four periods of two hours a week. That was for the first month. Then it was reduced to two periods of two hours per week, supervised by a fostering agency, and that continued from July to September. There were, however, problems. The contact centre complained about the mother's behaviour and withdrew their services. So contact was suspended from 1st to 16th October. It was then reinstated once per fortnight for one hour at a family centre, and it continued in that way from 17th October until 6th February this year. Following the hearing before me at the end of January and discussions within the local authority, it has now been increased to once per week. Telephone contact was originally twice a week for 10 minutes supervised by the foster carer. But at the beginning of October that was suspended and has remained suspended until now. The local authority plan to reinstate it for 10 minutes each week on a Monday, beginning this coming Monday.
12. Thus the local authority have shown some sympathy for the need to keep contact under review. The guardian has reservations about that because of the upset to T. There is concern that T does not understand all the issues and is confused by the situation. The guardian however accepts, Miss Venters tells me on her behalf today, that the local authority have decided to increase the face-to-face contact. She remains opposed to the introduction of telephone contact.
13. This is a difficult dilemma. There is no doubt that this little boy loves his mother, wants to go home to her and his older brother as soon as he can, and wants to see more of his mother, much more of his mother. On the other hand, the mother has not always been able to control herself in difficult situations and has not always behaved in the sensible way that social workers like people to behave during contact. It is, however, vital to maintain what appears to have been a very considerable improvement in the relations between social services and the mother which has taken place in the course of this year. A great deal of credit for that has to go to the mother, with the help and reassurance that she has received from the RCJ Advice Bureau, and also, in fairness, to the local authority and to the new social worker who has been assigned to the case.
14. The mother has been engaging in the Marlborough Family Service assessment. She remains very concerned about the nature and the independence of that assessment, but she has been engaging in it and that is absolutely crucial. She recognises that without some such assessment the chances of T getting his wish are much reduced.
15. So that improvement in relations must continue. In my view, the local authority have been wise to increase contact and should continue to consider increasing contact. I recognise the reservations expressed by the guardian, but the amount of contact which these three people are having with one another is very small. There will of course be concerns about the burden upon T. But this little boy has that burden in any event. He loves his mother. His mother from time to time has her problems. They all have their problems. That burden is not going to be taken away by being kept separate from his mother. So, while appreciating that the local authority must act carefully and cautiously, in my view the approach that they are adopting is the beginning of a process which ought to develop as best it can pending the final hearing.
16. On that basis, on the contact issue I would give permission to appeal because I do not share the view expressed by Her Honour Judge Mitchell, greatly experienced though she is in such matters, for the reasons that I have expressed. We are prepared to treat this, as all parties are represented before the court, as the hearing of the appeal. I would not make a defined contact order, however, on the appeal; but only because of my confidence that the local authority, having already take on board the views I expressed at the previous hearing, will continue to take the views that I have expressed on board and will continue to keep the matter of contact under constant review and improve the contact to the greatest extent possible.
17. The mother will realise that this places obligations on her. She knows that on occasions in the past she has been her own worst enemy, and that brings with it being T's as well. So she must do her best to comply with the very proper conditions that the local authority set on contact, and make them happy, relaxed occasions for all three of them.
18. As far as the assessment is concerned, the mother understands that that has to continue, whatever her reservations about it. She has to comply with it. I hope that she will understand that it will be an essential part of that for T to see the psychiatrist on his own. She will be able to make whatever comments she likes about the report when it comes out, but any such assessment always does see the child by himself and the court will want the information that comes from that. She has however asked that there should be an independent psychiatrist who is able to assess both T and the mother, at least as far as their mental state is concerned. In view of the history it is clearly necessary that the mother's up to date mental state be; and in view of the concerns that the mother has expressed about T, the same is true as far as T is concerned. Also Miss Venters, on behalf of the guardian ad litem, is concerned that the views that T is expressing to her are at odds with the views of the guardian as to what is in T's best interests. The question therefore arises for Miss Venters as to whether she should take T's instructions or whether he is not yet old enough and mature enough to give her instructions direct. That is a further reason for directing that there be an independent psychiatric assessment to deal with those matters.
19. I would give a direction to that effect, as part of the continued management of this case. It may need further exploration at the hearing on 18th March. It would be essential, however, that any such further examination would not put at risk the timetable. This is the last thing the mother wants, and the timetable will be more important than the examination. But nevertheless, if it can be arranged within the timetable so it should be. That is something with which I would hope that the RCJ Advice Bureau could assist the mother in negotiating with the other parties to identify an expert who could do that.
20. The final point that emerges is whether the case might be transferred to the High Court. The mother raised that possibility in reply, and my interpretation of the expressions on the faces behind her was that they were not unsympathetic to that suggestion. They will leap to their feet if they are unsympathetic to it.
21. MISS CORBETT: My concern, my Lady, I have to say, discussing it with Miss Venters, a five-day hearing in this court I know is going to be the end of October, the end of November. That is our concern.
22. LADY JUSTICE HALE: So also would be my concern. In fact a hearing in the Principal Registry in May will be preferable in this case to a hearing in the High Court in October. Were there to be, in the light of the views expressed in this court, the possibility of the May hearing going into the High Court because a slot became available, I can only say that this court would thoroughly support that. That is far as we can take that matter.
23. LORD JUSTICE ALDOUS: I am grateful for my Lady's judgment, which expresses my views completely. I reiterate her encouragement to the local authority to review this matter at regular intervals. In my view six weeks is a long time.
ORDER: Application for permission to appeal granted; no order made on the appeal save that an independent psychiatrist's assessment is directed; no order for costs save detailed assessment of the costs of parties in receipt of public funding. (Order not part of approved judgment)