England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MIDDLESBROUGH COUNTY COURT
(His Honour Judge Taylor)

		Royal Courts of Justice Strand London WC2 Monday, 20th May 2002

1. LORD JUSTICE WARD: This is an application by a father for permission to appeal against what is, at the moment, only the judgment of His Honour Judge Taylor, sitting in the Middlesbrough County Court on 11th January 2002. The order affecting the father was not made until 1st March, on a subsequent hearing, when the learned judge ordered, without giving any further judgment, that permission be given to the local authority to terminate the contact the father was to have to two sets of twins. There is no point in being over-concerned about the technicalities. We therefore approach this matter on the basis that the order under appeal may technically be that made on 1st March, when no reasons were given for it, and the judgment giving those reasons is the judgment of 11th January.
2. The matter arises in difficult care proceedings brought by the local authority in respect of five children of this family. G is aged six. She is not the child of the first respondent, the applicant, Mr G. The applicant and his wife, Mrs G, then had two sets of twins: N and C are a little short of their third birthday; C and T are only 18 months old. The care proceedings were brought partly out of a concern that G may have been sexually abused, but the judge was abundantly satisfied that there was no sexual abuse proved in respect of that child and those matters disappear completely from the picture. But G and two of the twins suffered physical injuries, and serious ones at that. C had had a number of ribs broken and suffered bruising; T also had broken ribs; and G from time to time had bruising on her cheeks and a black eye. The finger of suspicion pointed inevitably to the father, but the mother was not able to exculpate herself either and, with both of them denying responsibility, an issue in the case for the judge was to make findings about those injuries. To summarise it, he found that he could not be sure which of the parents had caused which injury. He was satisfied that one or other or both had done so. Reading between the lines, it may be that he thought there was more suspicion attaching to the father's conduct than to the mother's, but there are no findings of fact which carry that further forward and the court has to proceed upon the basis that it is undetermined who caused what.
3. Those were anxious enough decisions to take in any event, but this case had an unusual twist to it which caused the judge the manifest concern which leaps from the pages of his long, careful and sympathetic judgment, to which I pay tribute. These twins had been placed with experienced foster parents. There was a question-mark over their ability to act as adoptive parents because Mrs I is 48 and Mr I is 51, and they are at the upper level of acceptability for adoptive parents, according to conventional local authority guidelines. But they were an admirable couple who had looked after these children for many, many months so well that for the younger pair of twins they had become the primary attachment; and the elder twins likewise were firmly attached to Mr and Mrs I. Entering the picture was the father's brother and his wife, a childless couple, who demonstrated to the judge's satisfaction the most admirable qualities possible. Their claim to have both sets of twins live with them was a very powerful one. The judge resisted what would have seemed, perhaps, to be the obvious arithmetical solution of placing one set of twins with one family and the other with the other family - rightly, in my judgment. His agonising choice was to determine, therefore, whether the twins lived with the foster parents or with uncle and aunt. G, the elder child, was fairly securely placed with the maternal grandmother.
4. That decision is what caused the judge the greatest acute anxiety. He concluded, after very careful consideration, that the right course for these children would be to remain with the foster parents. He subsequently, on 1st March, dismissed the local authority's application that the children be freed for adoption, on the basis that Mr and Mrs I would be making their own adoption application. On 1st March he gave directions accordingly, and the timetabling of the case is such that the parents are to file their statements setting out their views on the adoption by 29th May (that is to say, next week) and the matter is to be heard on Friday 7th June, with a time estimate of a day. The guardian ad litem will remain involved in the case.
5. Having spent the major part of an extempore judgment dealing with those issues, the judge turned to the question of contact at p.52 of his judgment. He pointed out that the proposals for contact between the siblings was, wisely, that G, living with her maternal grandmother, should keep in contact with her half-brothers and sisters. Moreover, despite some difficulties that were being experienced in that regard, mother would continue to have contact with G. The judge was satisfied that Mr and Mrs I:

"... because of their almost unique experience and expertise in caring for children, are people who are going to bend over backwards to ensure that the family link is not lost."

6. The judge went on to note that the preferred view of the local authority and of the guardian was that contact with both parents should be severed. But he concluded (and I cannot fault this finding):

"It is an artificial situation that would present itself because of the contact that mother and G have with one another.

Because of the contact G is going to have with her siblings, and as they grow up and discuss seeing their mum, N and C in particular are of an age to know their mum and there is a bond, in particular between C and her mum, which is close and meaningful.

I think, at this stage, it is impossible to say that contact is necessarily going to be a bad thing. I think that the Is were open enough to concede that it could be a good thing for some, albeit limited, contact between the mother and the twins because of the situation concerning her parents and G.

What I propose to say about mother's contact at this stage, and it is difficult to make a final ruling until I know precisely the form of final order that I will make -- the timescale involved -- but on the assumption that the children remain with the Is, there needs to be a period of calm and settling down, for some months.

I cannot envisage contact taking place much before the end of this year and thereafter contact that the mother may enjoy will be of an infrequent nature. It would not exceed twice a year and it may only be once a year. But I think, and it needs careful considerable in conjunction with the Is in particular, because -- particularly if there is an adoptive placement -- they have got to live with it, and they have got to make it operate, and much will depend upon the co-operation of mother.

But I hope that it may be possible. I think it is in the interests of the four younger children, particularly because of G being in the equation, that there be some very limited contact with mum. As I say, not more than twice a year, possibly once a year, and I cannot envisage much contact before the end of this year. That is what I say about mother's position."

7. I see, if I may say so with respect, the sound common sense of that part of the judgment.
8. What has caused anxiety in this court is that the judge then dealt with the father's position immediately after the comments that I have read. He said:

"So far as father is concerned, I regret to say, from his point of view, that I cannot see the same benefit accruing. He is not going to be seeing G. The children are going to be confused by his involvement in the equation and I am afraid that I have come to the view that it is not in the interests of the children to continue contact. I therefore give the local authority permission, under section 34, to terminate."

9. I pause for a moment to observe that what the judge was doing was no more than giving the local authority permission under section 34 of the Children Act to end the contact that they would otherwise be obliged to facilitate between these children in care and their father.
10. The judge then went on to say something about the position of the uncle and aunt. He had been asked to consider making a direction about contact between uncle and aunt and the twins. The judge was not prepared to make an order about it, but he wished the foster parents to be told of his views. He praised uncle and aunt for their mature attitude in the proceedings: they were not jumping on what he called "the bandwagon" of splitting the twins. He concluded:

"I am satisfied that they are worthy people. I am satisfied that they are people who would have something to offer these young children. I think that they are people who would not disrupt the placement -- not only do I think it, I am absolutely certain of it.

I think that, as the children grow up knowing about their extended family, occasional contact -- indirect, and possibly direct, would be in the long-term interests of those children. I am certain that the way that this can be achieved is by sensible consideration given by Mr and Mrs I to exchange of communications, cards -- perhaps some presents, the odd telephone call, to see how relations build up over a period of time. But I hope that that can be achieved."

11. The father applies for permission to appeal against the order giving the local authority permission to terminate his contact. In my judgment he has shown sufficiently arguable grounds for that permission to be granted. I therefore deal with the matter on the basis that it is a full appeal.
12. The main attack against the judgment is that the judge was so concerned to deal with the really important question of placement of the children, which he did very carefully, that, when it came to dealing with contact, it was dealt with in a way which leaves the father uncertain as to quite why his contact was denied and (more importantly, submits Mr Pinkney for the father) leaves this court uncertain as to the judge's reasons. There is force in that argument, though I wish to say at the very outset that I am wholly sympathetic to the judge because he dealt with all those other matters very carefully indeed and it is easy to see why, at the end of a very long hearing over many, many days and at the end of a long extempore judgment, he did not express himself as fully as ordinarily he would have done.
13. The problem is that his analysis seems to be that there would not be the same benefit accruing to the children from seeing their father as accrues to them from seeing their mother. The judge felt that G's part in the equation was important. It certainly was in justifying the mother's contact, but, once contact was being afforded to her, I find it difficult to be persuaded that the children would be confused by father's involvement in the equation (using his words) when I would have expected that the children might be as confused, if not more confused, by his non-involvement in the equation. Certainly, when G comes to visit and talks about Mummy, the twins would say that it is strange that she should be seeing their mother but they are not, and that is a good reason for her having contact. But equally, I fear, the twins are as likely to be asking, "Why is it that we are seeing Mummy, but not seeing Daddy?", to which no easy answer can be given. On the judge's finding that it was uncertain who had caused the injuries, the absence of father could not be explained on the grounds that he was the perpetrator of the injuries which led to the children being put in care. He was probably one perpetrator, but it could not be excluded that mother had played her part.
14. Moreover, when one is looking at the benefits of contact, in a case like this the benefit is the benefit that comes from the children simply knowing who the natural parental figures are. It is to remove the sense of the ogre, as they reach adolescence and begin to search for their own identity, with the double crisis not only of adolescence itself but of coming to grips with the fact that they are adopted. That is why the current research is in favour of some contact in adoption. It does not seem to me that the judge has analysed why the minimal benefit of keeping the link alive does not operate as much for father as for mother. He does not look into the long term and analyse whether there is some benefit to the children in knowing that this father has kept in touch with them, despite the adoption. Mr Pinkney made the point in the most effective way by his careful understatement of the benefits for contact in adoption, which merited more consideration than the judge was able, perhaps because of pressures of time, to give it.
15. There is another factor that troubles me. The judge was encouraging Mr and Mrs I to keep the door open to the paternal family through uncle and aunt, and again I see the wisdom of that view that he formed. Indeed, the paradox in this case is that the guardian ad litem was prepared to support father's contact to the children if they had been placed with uncle and aunt because it would be unnatural to expect that it could not properly take place in those circumstances. But the guardian and the local authority were both of the view that both parents should have no contact if the long-term placement was with Mr and Mrs I. It seems to me that there will be even more confusion for the children if they are to be able to have contact with their paternal uncle but not to have any contact with their father, and I do not see that the judge explains why that distinction can, and should, properly be drawn.
16. It is with a measure of reluctance that I would allow the appeal against the order because, although I find it to be flawed when subjected to detailed criticism, I remain always conscious that the judge heard the parties over days and days and had come to obvious conclusions about the personalities before him.
17. Mr Swiffen, for the local authority, correctly submits to us that, following the recent decision of this court in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, an appropriate course, when considering whether or not to grant permission where the reasons of the judge are not starkly apparent, is to invite him to supplement the defect by spelling out precisely why he came to the conclusions he did. That course is unattractive to me because we do not have the time to do so. The judge will be looking at this matter on 7th June in the adoption context, and it is really in that context that this question ought to have arisen. In the light of his judgment to dismiss the local authority's application to free the children for adoption, and in the light of his inviting Mr and Mrs I to make their own adoption application, as it is inevitable they will now do, the decision he was asked to make by the local authority to terminate contact under section 34 was almost a meaningless order and it was quite unnecessary to make it. All that the order did was relieve the local authority of the duty otherwise on them to make some contact available to the parents. The local authority will cease to have anything to do in this case, as it seems to me, on 7th June as their control will come to an end on the making of the adoption order. The right time to consider what kind of contact natural parents are to have to children being adopted is on the occasion adoption is under consideration. This case is not one where the children are still with short-term foster parents, when no decisions have been taken about placement and where it can take months and, in the unhappy experience of all of us, even years to find a secure adoptive placement. In those circumstances ceasing contact by virtue of section 34 has a purpose, but, on the facts of this case, it seems to me to be particularly unimportant to avail of that remedy.
18. Mr Swiffen has urged that one reason for denying father's contact would be his opposition to the placement with Mr and Mrs I. That is unfair on the father. It is not unfair of Mr Swiffen to make the point, but it does not do the father's case justice. He was supporting his brother and it is wholly understandable that in the proceedings before Judge Taylor in January he was pro-brother and anti-Mr and Mrs I. But what his attitude will be to their adoption application is yet to be determined. If he is adamantly opposed and if he is at risk of disrupting the placement, then that will be a factor to be taken into account. But at the moment we do not know for certain how he will be responding to the judgment of 11th January and how he will seek to assure Mr and Mrs I that he will do nothing to interrupt the adoption. It is an adoption which has the huge advantage that, for the younger twins at least, the adoptive parents are effectively the psychological parents and the only ones that C and T know; and their bond with N and C is equally strong. So the risks of upheaval are significantly less than if these children were eight, nine or ten and only being adopted at that age.
19. Mr Pinkney, to whose submissions I pay tribute, invites us to discharge the order made under section 34 and, it having been discharged, leave it to Judge Taylor to look at contact in the light of this judgment and in the light of the events as they turn out to be on 7th June. Speaking for myself, having looked at his judgment, I, like Mr Pinkney, have no qualms at all about leaving it to Judge Taylor to reconsider contact in the adoptive context, and I have no doubt whatever that he will look at the matter afresh and without any sense that he has been tied by the view he formed in January. I would therefore feel absolute confidence in allowing him to reconsider the matter in June, when it will be open to him to deal with it, as I emphasise again, in the context of the adoption, which is a wholly different way of looking at contact than looking at contact in the context of a care case. The views I have expressed about the benefits of contact can be considered by Judge Taylor, and, as importantly, by Mr and Mrs I, whose views will be virtually determinative of the question if the adoption order is made. Neither the judge nor the proposed adoptors are bound by my views. Both are free to embrace or reject them.
20. But I regret that I have been persuaded that the judge did not fully explain his reasons and may not have thought the matter through as fully as usually he would. Therefore, I would allow the appeal and discharge the order in fact drawn on 1st March giving permission to the local authority to terminate father's contact to these twins. The result is that the question of contact after adoption must be reconsidered on 7th June.
21. SIR MARTIN NOURSE: For the reasons given by Lord Justice Ward I too would grant the father permission to appeal and allow his appeal. I do not wish to add to my Lord's reasoning. I concur in the order proposed by him.
Order: application for permission to appeal granted; appeal allowed and order of 1st March discharged; public funding costs assessment for the applicant.