England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE-UPON-TYNE COUNTY COURT
Her Honour Judge Hudson
NE13Z00832

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/08/2014

Lord Justice McFarlane:

1. The child at the centre of this appeal is a girl, E, born 4^th November 2003 and therefore now aged 10½ years. She is the second eldest of four children born to JG ("the mother") and KE ("the father") during the course of an extended extra-marital affair. The father throughout has remained together with his wife, who knows of the affair. Indeed, as I will describe, for some time the father and his wife have provided a home for the eldest child, another girl, L, born in March 1999 and therefore now aged 15 years.
2. The two younger children are A, born March 2008, and now aged 6 and C, born October 2010 and now aged 3¾ years. The three youngest children, E, A and C, were made the subject of full care orders and orders authorising the local authority to place them for adoption by a decision of the local family proceedings court made in May 2012. The plan was for all three children to be placed for adoption together. As E was by then aged 8, that plan was plainly ambitious. In the event it could not be realised and, by December 2012, the local authority changed its plan for E to one of long term foster care. An adoptive home was, however, found for A and C. The adopters live outside the United Kingdom. A and C were placed with the adopters in July 2013 and an adoption application with respect to A and C is now pending before the Family Court.
3. The issue which is at the focus of this appeal relates to the provision for contact between E and the various members of her family in the circumstances which have now become settled, namely, that she is to spend the foreseeable future in long term foster care, whilst her two younger siblings settle into their adoptive home abroad and her elder sister, L, continues to reside with her father and his wife. At first instance the competing arguments crystallised into the case on behalf of the family which was that regular face to face contact between E and her mother, father and L should continue. The course of action favoured by the local authority and the guardian was, however, that priority should be given to maintaining some face to face contact between E and A and C in the light of the fact that they had always lived together until July 2013. It was generally accepted that, if E was going to carry on seeing A and C, she would be bound to understand details of their placement with the result that it would be impossible to maintain the confidentiality of that placement if E were also to carry on having any form of open and direct contact with either of her parents or L.
4. The case was heard by Her Honour Judge Hudson sitting in Newcastle upon Tyne on 20^th November 2013. By agreement between the parties, no oral evidence was called and the case was determined on the basis of submissions. L was not joined as a party to the proceedings but she made an application for contact and was represented by her own solicitor. L's solicitor received some, but only very limited disclosure of the case papers. She was permitted to enter the court room in order to make her submission, but did not hear the submissions made by the other parties.
5. In the event HHJ Hudson favoured the plan supported by the local authority and the guardian. As a result she made orders under Children Act l989, s 34(4) authorising the local authority to refuse contact between E and her mother, father and L. Provision of contact between E and A and C was to proceed on the basis of clear statements of intent that had been given by the proposed adopters. In addition the judge, with the agreement of all parties, revoked the placement for adoption order with respect to E, and dismissed applications which each of the parents had made to discharge the care order in E's case.
6. On 1^st April 2014 I granted the father's application for permission to appeal with respect the contact decision. I did so in part on the basis that the judge had proceeded upon the assumption (paragraph 65) that:

"…in the event that this direct contact with A and C does not materialise or is not maintained the local authority would be able to re-visit the question of direct contact between E and the other members of her birth family."

The father informed me that immediately after the judge had given her judgment he spoke to Mr PW, the social worker who then held the case, who made it plain that the prospect of contact re-starting with the natural family would simply never arise as, once E had had any form of contact with A and C and came to know where they lived, it would be untenable for the local authority to consider E then having open communication with the natural family. I also gave permission to appeal on the more general basis of concern as to the priority given to the imprecise potential for contact with A and C over and above the more ordinary arrangement for a child in long term foster care, which is to have some form of continuing direct contact with her natural family.

7. L has also filed an application for permission to appeal. Given that permission had already been granted to her mother and father, at the beginning of this hearing we also granted permission to prosecute her appeal.
8. The mother had in fact filed her own application for permission to appeal at an earlier date. For some reason that was not listed before me in April. However, on 2^nd June 2014 I granted her permission to appeal on the issue of contact, but refused her application for permission with respect to her failed application to discharge the care order. At the beginning of the hearing before this court, we heard the mother's renewed application for permission to appeal the refusal to discharge the care order. We refused that application for the following reasons.
9. The mother's position before the court with regard to the discharge of the care order was, in my view, hopeless. HHJ Hudson was bound by the findings of the family proceedings court in May 2012. The adverse findings commenced with the mother's criminal conviction for assault upon her eldest child, L, who was 21 months at the time. L suffered significant bruising to the face and head which expert opinion advised was probably caused by more than one blow delivered with considerable force.
10. Thereafter the justices found many examples of the children being physically harmed by the mother who had struggled with the day to day care of her three young children to the extent that events often became too much for her. She would respond by losing her temper and was at times physically or verbally abusive to the children. As a result the children had suffered physical harm but, of more importance, emotional harm in her care.
11. In addition the justices found evidence of neglect arising from hygiene and fire risk in the children's home, and from the number of house moves and changes of school that the children had experienced.
12. HHJ Hudson rightly described these findings as "extremely serious and wide-ranging". They established a long-standing and deep seated pattern of parental behaviour. After May 2012 the mother had failed to accept the decision of the FPC and, again as Judge Hudson found, had consequently failed to achieve understanding or acceptance of her responsibility for the children's removal from her care. HHJ Hudson found that "the changes that [the mother] has made to her life do not in my judgment address the significant shortcomings in the parenting identified by the family proceedings court in their findings." The judge therefore dismissed the application to discharge the care order.
13. The proposed appeal against that decision made by the mother once again is, at its core, a challenge to the findings of the FPC and, as a result, has no prospect of success. Further, it is, sadly, the case that the mother's contact with E was suspended over 2 years ago in consequence of the child's adverse response to meeting her mother. Judge Hudson records that the mother accepted in her evidence that "she would need to work towards establishing any contact with E". It is therefore all the more difficult to contemplate that the mother's application at that stage for the discharge of the care order had any prospect of success. For those reasons my Lord and I had no hesitation in refusing the mother's application for permission to appeal the discharge refusal.

Contact: the judge's decision

14. The background to the judge's decision included the following factors:

a) Mother's direct contact to E had ended following the FPC decision in May 2012 on the basis of factors unrelated to the placement arrangements for A and C;

b) In contrast, the father, and on most occasions L, continued to have contact with all three of the children every six weeks until December 2012. Thereafter, they continued to see E once every six weeks;

c) The contact records showed that E displayed pleasure at contact with the father, L and the father's wife. The judge found that "L clearly loves E, A and C very much, something which has been reciprocated by them." She found that "the contact records I have seen provide a picture of generally positive contact with warm interaction and affection recorded."

d) The adverse findings of the magistrates with respect to the father were of a different nature to those relating to the mother. In the father's case it was said against him that he was inconsistent and, in particular, his repeated denial of paternity of the children failed to recognise their need for stability and failed to meet their emotional needs;

e) At the age of 10 E had a good knowledge of her birth family;

f) The prospective adopters of A and C had consistently maintained their wish to promote the relationship between those two children and their older sister, E. Their intention is to do that by a range of communications including direct contact. They are, however, not willing to engage in direct contact if E is also having direct contact with other members of her birth family because of the inevitable risk to the confidentiality of the placement of A and C with them;

g) An organisation within the social services known as "Full Circle" was commissioned to report on the relationships between the children and their family. The Full Circle report concluded that the relationship between E and her two younger siblings was significant and important to her. However, the judge indicated that there were a number of important "health warnings" to be attached to the Full Circle report (considered below);

h) Both the local authority and the children's guardian concluded that the relationship between E and A and C was such that the prospect of direct contact continuing should be given a priority over continuing contact between E, her father, L and the father's wife.

15. In her analysis on the issue of contact the judge acknowledged the difficulty in the case which arises from the strong relationship, based on shared experience, between E and A and C on the one hand, and the established relationships that E has with her father, his wife and L which have been maintained through contact which E enjoys. The difficulty in the case arises from the fact that only one of these two sets of relationships can continue.
16. The judge accepted the prospect that, whatever court order was made, E might seek out her family and establish direct contact, thereby compromising any arrangements that had been made for contact with A and C. Equally, the judge, as I have indicated, worked on the basis that in the event that direct contact with A and C did not materialise, or was not maintained, the local authority would be able to re-visit the question of direct contact between E and the other members of her family.
17. The judge described this as "a difficult and a finely balanced decision" but in the end she favoured the plan of the local authority, supported by the guardian, on the basis that the relationship that E has with A and C is the most significant one for her. At paragraph 67 the judge said this:

"The prospect of that relationship being maintained through direct contact should be pursued and promoted, even though that will require direct contact between E and her father and L to come to an end. These arrangements will, however, require the most careful monitoring to ensure that they are meeting E's welfare needs. Firstly, whether the prospective adopters do maintain their commitment to contact and, secondly, whether the benefit of that continuing contact at the low level proposed does better meet E's welfare needs than more frequent contact with other members of her birth family, particularly (father) and L. This must be carefully monitored by the local authority through its care team meetings and looked after reviews."

18. The judge concluded by stressing that the order under s 34(4) was permissive; it authorises refusal of contact, rather than requiring contact to be refused. The judge stipulated that the court order should include a recital to the effect that each of E's parents will be notified of any change on the part of the prospective adopters in relation to their stance on continuing contact and/or any change in the position of the local authority on that point.
19. The court order issued following the judge's judgment on 20^th November 2013 was defective. Following a set of recitals which do reflect the judge's judgment, the body of the order simply recorded that the placement order with respect to E had been revoked by consent. On the occasion of granting permission to appeal, I made reference to the apparent inadequacy of the order. That has now been rectified by an order which records the dismissal of the applications to discharge the care order and the making of an order under s 34(4) authorising refusal of contact between E and her mother and father. It also records the fact that L's application for contact to E was dismissed.

The present position

20. In the eight months that have followed the judge's decision there has been something of a stalemate. This is no doubt in some large part due to the outstanding applications before this court. However, the situation is that A and C have continued to become consolidated in their new adoptive home. E remains in long term foster care. Pending the outcome of these proceedings no active steps have been taken to establish direct contact between E and A and C. The local authority has, however, acted upon the authorisation given by the s 34(4) order and all contact between E and her birth family has entirely ceased. This includes indirect contact, about which topic there is no reference at all in the judgment or the court order. The result is that, since December 2013, E has neither seen nor heard from any of her relatives. That state of affairs was expressly acknowledged by Mr John Hayes QC, acting for the local authority, as being unsatisfactory. He accepted that indirect contact needs to take place. Mr Gray, counsel for E, in turn informed us that the guardian was concerned that there had been no indirect contact. It would, therefore, seem that it is only this appeal that has brought the issue of the lack of indirect contact to light and has caused the local authority to accept the need to make provision for such contact to take place. If that is the case, it is highly regrettable and a matter of concern.

The case on appeal

21. At the hearing before this court the interests of L were represented by Miss Pamela Scriven QC and Miss Jackie McKie. With the agreement of all parties, we heard first of all from Miss Scriven who, in effect, presented the main submissions on behalf of each of the appealing parties. In addition to raising the issue of indirect contact, to which I have already made reference, Miss Scriven sought to make four central points:

i) The principal criticism of the judge's judgment mounted on behalf of L, and accepted by the other appellants, is that the judge failed to look into the future to determine whether, in two or three years time (rather than now), the importance to E of maintaining contact with A and C justified having no direct contact with her relatives in this country. The judge rightly took account of the quality of the inter-sibling relationship between these three children, who had, until July 2013, always lived together, but, it is submitted, the judge wholly failed to attempt to evaluate what that sibling relationship would become once the sea change of adoption had taken place and these young children began to settle down and grow into their life in a different family and in a different country.

In the same context of the judge's failure, it was said, to look forward, it is submitted that the adopters' stated intentions as to supporting direct contact between E and A and C must be taken to be at its highest at the present time. The judge had limited information as to the adopters, and plainly had not encountered them face to face. The judge, it is submitted, wholly failed to evaluate the prospect of the adopters failing to stick to maintaining contact between their children, as A and C will become, and E as time moves on.

Finally, in terms of this first factor of a failure to look forward, Miss Scriven submits that the judge should have questioned whether or not a girl of 10 would find her relationship with an older sibling in this country to be of more value as the years go by and, particularly, as E enters her teenage years.

ii) The second topic raised by Miss Scriven can be represented by the label "Facebook". The potential for young people in long term foster care or adoption to cut across orders and stipulations as to contact by utilising social media is now well known (see for example '"May I be your Facebook Friend?' Life Stories and Social Media" by Mrs Justice Eleanor King - [2013] Fam Law 1399). This topic was raised for the first time during the first instance hearing and, as the guardian candidly admitted, it was not a matter that had previously been considered. Miss Scriven's criticism is that once raised, the judge herself also failed to tease out the potential for contact via social media to cut right across any arrangements that are put in place in a manner that would be, almost by definition, unplanned, unstructured and maybe even unknown to those responsible for E's care.

iii) The third topic within Miss Scriven's overall submissions focussed on what would happen if the proposed arrangements for face to face contact between E and A and C were to fail. As I have indicated, the judge assumed that the local authority would actively consider resuming face to face contact between E and her father and L. Miss Scriven seriously questions whether this could ever be a possibility once E had gained knowledge, as she surely would, of the general location, if not the specific address, of A and C in their adoptive placement. Miss Scriven described this factor as being "the elephant in the room" in the context of any expectation of resumed direct contact between E and her family in this country. The judge simply assumed that this would be given active consideration whereas Miss Scriven submits that the issue is far more complicated than that. It required evaluation, but the judge simply failed to engage with the point.

iv) The final area focussed upon by Miss Scriven was the absence of information as to E's wishes and feelings, particularly with respect to continued contact with her sister L.

The Full Circle report, prepared in-house by the local authority, involved undertaking a number of "stem story" exercises with E and also applying the Bene-Anthony Family Relations test. The only reference in these exercises to the father or L was to report that during the Bene-Anthony test E did not place any cards at all into the boxes representing these two family members.

At paragraph 54 of her judgment the judge spells out the "health warnings" that she considered should be attached to the work of Full Circle. Firstly, the instructions given to Full Circle were not clear. Secondly, it did not seem that Full Circle had had access to the records of contact, which describe E's contact with her father, L and father's wife in generally positive terms. Thirdly, the assessment was undertaken at a time when E, A and C were all living together and therefore in a much closer relationship than was now to be the case. The judge concluded therefore that "against this background I have not considered it appropriate to place any significant weight on these assessment reports in reaching my conclusions".

Miss Scriven submits that the judge was right to take this approach to the Full Circle assessment and the absence within it of any positive indicator of E's wishes and feelings with regard to continued contact to L and her father. Miss Scriven makes the further point that the single session conducted by Full Circle, occurred at the very time, December 2012, when the local authority were deciding to separate E from A and C. E, A and C remained together in the same foster placement until July 2013. The last time that the three children saw each other was on 11^th July 2013 when A and C moved to the home of the prospective adopters.

In her first report for these proceedings, dated September 2013 the guardian described E as a young person who does not easily demonstrate her emotional responses. With regard to the potential for loss of contact with her family members the guardian says this at paragraph 17:

"I do not think that this is at all straightforward for E and she will be upset at the ending of contact with L and her father, if that is what has to happen. She is a complex little girl, who struggles to identify her emotions and needs others to make informed decisions about what is in her best interests. When I spoke to E, she appeared to be very accepting of her current situation, including the fact that A and C are no longer in placement with her. She did not talk about her father (his wife) or L unprompted, whereas she told me about A and C moving away."

In her second report, dated November 2013, the guardian effectively repeated the same account.

In presenting her submissions Miss Scriven stressed that the magistrates, in the course of their detailed and careful evaluation in May 2012, had emphasised the importance of a thorough assessment of the effect on E of the competing regimes for contact. The justices said:

"It is accepted that a joint placement [of E together with A+C] may be difficult and accordingly Full Circle will be undertaking work with E to determine whether her best interests would be served by maintaining contact with A and C or with her parents and L if a joint placement cannot be achieved.

This will be a very important decision for all the children involved and we trust that a through assessment will take place."

Miss Scriven's short point is that the only assessment is that of Full Circle, supplemented by the guardian, and that cannot be regarded as a "through assessment" of the impact on E of the loss of her continuing relationship with L and other members of the family in this country.

22. The other appellants each adopted the submissions made by Miss Scriven. Mr Larizadeh, on behalf of the father, who did not appear below, drew attention to the reported statement of the prospective adopters (set out in the guardian's report) that, in the event that the identity of the adoptive placement might become known, if, in years to come, E might make contact with her birth family, the adopters "feel they can manage this risk". Counsel's submission was that, if that was the case, then, the prospect of E maintaining some form of direct contact with all of her relatives could not be ruled out, yet it was not given active consideration by the judge.
23. Mr Larizadeh also drew attention to the fact that the contact notes, which were, as I have said, largely positive, ceased as at July 2012, some 18 months prior to the end of contact. It was therefore the case that the guardian and the judge had no information as to the development of E's contact with her father and L during this crucial period.
24. E's mother, acting in person, also adopted Miss Scriven's submissions.
25. At the commencement of his submissions in response, Mr Hayes, on behalf of the local authority, made a number of concessions. The first was to accept the need for indirect contact. The second was to accept that, until sending a letter to the father last week, the local authority had done nothing in that regard and the third was to accept that E's position in long term foster care was not to be equated to that of a child who had been adopted. Each of those concessions were, to my mind, well made and it is a matter of concern that, some eight months after the judge's order, the local authority's position has only been corrected as a result of the light that these appeal proceedings have brought to bear on the local authority's actions, or more properly, inactions.
26. Mr Hayes sought to support the judge's judgment and submitted that the judge, contrary to the submissions made by the other parties, was looking at the reality of E's life both now and in the future. That submission prompted a request to be shown that part of the judgment which meets the criticisms made by Miss Scriven as to the judge's failure to look to the future. The only passage to which Mr Hayes could turn was at paragraph 56 where the judge simply rehearses the evidence as to the real commitment reported on the part of the adopters as to establishing and maintaining direct contact with A and C.
27. Mr Hayes submitted that if, in the future, the prospect of direct contact between E and A and C ended, then, contrary to the scenario suggested by Miss Scriven with her reference to the "elephant in the room", Mr Hayes submitted that, at that point, a complete re-examination of E's best interests would be required. On behalf of the local authority, he expressly accepted that, whilst it might be, at that stage, in A and C's best interests for E to remain out of contact with the natural family in order to maintain the confidentiality of their placement, the welfare of those two younger children would not be a consideration in determining whether it was in E's best interests to re-commence direct contact with her relatives.
28. Mr Hayes further accepted that the only evidence of E's wishes and feelings was set out in the guardian's report. Further, insofar as the guardian relies upon the work at Full Circle to support her conclusion that the relationship with the father and L should not be prioritised over the relationship with A and C, the need for caution arising out of the Full Circle assessment would seem to neutralise that recommendation.
29. On behalf of the guardian Mr Gray opposed the appeal. With respect to the evaluation, or lack of evaluation, of E's wishes and feelings, he submitted that there were plainly difficulties in this case in conducting any direct questioning of E on this topic. It was therefore necessary to gain some picture of the value she attributed to the relationships in her family by other means.

Discussion

30. This is a difficult and unusual case and the judge deserves respect for the manner in which she sought to engage with its intricacies. The judge rightly felt concerned for E who, in contrast to the other three siblings, has failed to achieve a permanent home in a family for the remainder of her childhood and who, as events turned out, was exposed to the abusive parenting of her mother and father to a greater extent than any of the other three children. The judicial task was made all the more difficult by the stark choice that fell to be made: either E could carry on having direct contact with her father, L and, possibly, others in her family or she would have to cease such contact in order to maintain some direct contact with her younger siblings.
31. The judge acknowledged the need to make a choice, went on to make it and gave clear reasons for doing so. None of the appealing parties submits that the choice made by the judge is clearly "wrong" and, for my part, I readily contemplate that either of the two outcomes could be in E's best interests. I have therefore approached the task of auditing the judgment in this case on the basis that the judge enjoyed a wide discretion and this court should only interfere with her exercise of that discretion if it is satisfied that there is a clear need to do so.
32. Despite approaching the decision on appeal on that basis, the powerful submissions made by Miss Scriven have persuaded me that the judge did fail to take into account a number of highly significant matters, the omission of which renders the judicial analysis unsafe.
33. Having already rehearsed the submissions, it is not necessary for me to labour the points at this stage.
34. In particular I consider that Miss Scriven's principal criticism, to the effect that the judge failed to look to the future, is made out. The information as to the relationship between E and A and C was already 4 months old by the time of the hearing, as the children had not seen each other since July 2013. There was inadequate information as to E's present wishes and feelings with regard to the issue of contact. There was no information at all about her wishes and feelings on the specific and important topic of contact with L. There was no evaluation of the likely value to E in, say, two or three years time, of either having contact once or twice each year with her younger siblings, or more regular contact with family members, including her older sister, in this country. The potential for unstructured contact via social media was insufficiently assessed given its potential to cut across the embargo on contact with the natural family. The assertion that the adopters could 'manage the risk' (coming as it did from the guardian's report of what the adoption social worker had said to her) was an insufficient basis upon which to understand what would occur in such a situation. Finally, it is clear that the judge considered that, if face to face contact with A and C failed, it would be likely that contact with the father and L would be re-established, whereas, as Miss Scriven submits, that situation would be complicated by the knowledge that E may have gained through contact with A and C and, as Mr Hayes accepts, there would be a need for a root and branch reappraisal of the options at that stage.
35. The conventional starting point for contact to a child in long term foster care is for existing relationships with family members to be maintained by a regime of fairly regular direct contact unless there are specific child focussed reasons for taking an alternative course. In the present case, for example, there may be specific reasons connected with the mother and her relationship with E which indicate that no direct contact should take place. The reason for the default position in favour of some direct contact is plain. A child is only in foster care under a care order until he or she achieves the age of 18. At that time and in the years to follow they will be free to re-join their family on whatever basis they may choose. Artificially terminating all contact during the intervening years is therefore likely to be entirely counterproductive and a step which will inhibit the young person's developing sense of their own identity within their family. Although not a submission made by Miss Scriven, I am struck by the apparent absence of consideration of the impact on E, once she reaches the end of her time in care, if she has not maintained any relationship with members of her family in this country during the intervening 7 or 8 years.
36. I therefore have concluded that this appeal must be allowed and that the issue of contact needs to be reheard by a different judge who will be in a position to take on board all of the relevant factors and, if necessary, be furnished with an up to date appraisal of E's wishes and feelings and information concerning any other developments.
37. The position of the mother is different from that which applies to the father and L. The s 34(4) order made in her case was simply a continuation of the order in similar terms that had been made by the justices in May 2012. In allowing the appeal, we announced that we were setting aside each of the s 34(4) orders made in November 2013 but I should make it plain that, in the mother's case, the May 2012 s 34(4) order relating to her has not been the subject of any appeal and remains in place.
38. Finally, for the avoidance of doubt, I have not expressed, and do not hold, any view as to the eventual outcome of this case.

Lord Justice Aikens

39. I agree.