High Court of Justice in Northern Ireland Family Division Decisions

Neutral Citation no. [2001] NIFam 1

Ref:    

GILC3319

 

 

 

Judgment: approved by the Court for handing down

Delivered:

19.01.2001

(subject to editorial corrections)

 

 

   

                                               

 

    IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND   FAMILY DIVISION   ------------   IN THE MATTER OF THE CHILDREN (NORTHERN IRELAND) ORDER 1995   RE:  T (TERMINATION OF CONTACT)   ------------

 

GILLEN J

            I have prepared this judgment in anonymised form and nothing must be published which might lead to the identification of the child involved in this case.

            The applicant in this matter is Home First Community Health and Social Services Trust (hereinafter called "the Trust") who have brought an application under Article 53(4) of the Children (Northern Ireland) Order 1995 (hereinafter called "the 1995 Order") to authorise the Trust to refuse to allow contact between T and the respondents in this case PMcG and PMcL.  The respondents in this matter are the birth parents of the child T.  There is also before the court an application, as amended by the respondents, seeking a Contact Order pursuant to Article 53(3) of the 1995 Order.  Child T, is the daughter of the respondents and was born on 2 March 1999.

            A relevant background of PMcG is that she first came to the attention of the Social Services when she moved from Dublin to Belfast in 1993.  At that stage she was in a relationship with one MT who is the father of PMcG's four other children.  They are currently aged approximately 15, 14, 12 and 7.  Social Services became involved with these children due to concerns about abuse of alcohol, domestic violence, neglect and children being left unattended in relation to PMcG and MT.  Place of Safety Orders were taken in August 1996 and the children placed in foster care.  Subsequently care proceedings were initiated and an Emergency Protection Order was obtained in respect of all four of these children in 1997.  Thereafter Interim Care Orders were granted and full Care Orders were granted in respect of all four children in June 1997.  The history of PMcG's involvement with these children was one of excessive abuse of alcohol, failure to address the alcohol problem and failure to keep appointments with Social Services to discuss future care arrangements for her children.  It is right to say however that there are contact arrangements in place for her to access these children.

            According to Ms Hayes, social worker, the applicant in this case first had contact with PMcG on 13 August 1997 when she presented to the duty social worker requesting financial assistance.  During 1997 and 1998 she presented to that office requesting money.  She at that time was cohabiting with PMcL.  The case was apparently formally referred to Slemish Community Services Centre on 5 November 1998 by the community midwife when it came to light that PMcG was approximately 18-20 weeks pregnant with T.  Contact was made with Antrim Road Social Services and information gathered as to PMcG's background history.  A decision was taken to convene a Child Protection Case Conference to assess any risks to the baby.  A history of domestic violence between PMcG and PMcL then began to emerge.   According to Ms Hayes, PMcG related a history of beatings by PMcL including an incident in January 1999 when allegedly PMcL had beaten her, threatening to kill her with a hammer.  Both respondents denied in evidence such an incident occurred.  Towards the end of her pregnancy, PMcG was staying at a Women's Aid Hostel.  Staff there had observed both the respondents having consumed alcohol and also evidence of further violence to PMcG. 

Accordingly the applicants at that stage felt there was a risk of significant harm to T upon her birth given the respondent's continued alcohol misuse and the domestic violence to which she was being subjected.  The unborn baby was therefore placed on the Child Protection Register and a decision taken to initiate care proceedings following the birth of the child.

On 3 March 1999, when PMcG was admitted to Antrim Hospital to induce the birth of T, it was reported to Social Services that she arrived at the hospital smelling of alcohol.  She admitted in evidence she had been drinking cans of beer the night before the birth.  The baby was born that day.  An Emergency Protection Order was obtained on 4 March 1999.  The evidence was that when PMcL was informed of the Order he was extremely aggressive and threatened social workers on the telephone stating that he would be taking the baby home to his house. 

On 10 March 1999 an Interim Care Order was granted in respect of T and the child placed in a foster home following discharge from hospital.  She has remained in foster care ever since.  There have been three placements with foster carers, the last being with the current carers since October 1999.

Thereafter the reports and the evidence before me of Ms N Hayes, social worker with the respondent, exhibit a litany of incidents of alcohol abuse and domestic violence involving the respondents.  I regard all of these matters as being of significance in the context of this case but for the purposes of this judgment I have outlined some of the more serious:

(a)        On 19 March 1999 the two respondents arrived at the applicant's office for the purpose of contact with the child.  It was obvious that PMcL had taken an excessive amount of alcohol and he was asked to leave the contact room.  Thereupon he became extremely abusive, making attempts to lift T from PMcG.  PMcL made threats to cut the social worker's throat.  He eventually left the office shouting abuse in an extremely aggressive manner.  At this time PMcG was attending AA meetings although she returned to live with PMcL on 22 March 1999.

(b)       On 22 March 1999, although the respondents returned for contact with T, they both adamantly refused to give consideration to an assessment of their parenting ability and skills at Thorndale Assessment Centre.  This is but one example of a number of occasions on which I find that they have rejected the assistance offered to them. 

(c)        On 31 March 1999 Children Services received a telephone call from the Women's Aid Hostel staff in Belfast to the effect that PMcG had presented herself on the evening of 30 March 1999 seeking refuge having been assaulted by PMcL.  She was requesting at that stage help for her alcohol addiction and had agreed to a residential alcohol rehabilitation programme.  An assessment session was thereafter arranged for 13 April 1999 at Northlands in Londonderry.  PMcL continued to telephone and make threats to the staff and residents at the Women's Aid Hostel.  The police were informed of such threats.

(d)       On 2 April 1999 PMcG requested that contact with T should take place at the Women's Aid Hostel as she feared meeting PMcL.  This was facilitated.  At that stage PMcG spoke at length about her plans for the future and her desire to get help for her alcohol addiction.  Regretfully I find that on this and other occasions her good intentions soon evaporated.  Although she agreed to remain in the hostel for a few weeks, within a matter of hours she returned to PMcL.

(e)        On 13 April 1999 PMcG and PMcL informed Ms Hayes that they would go for counselling at the Community Addiction Team in Ballymena.  However, PMcG did not attend Northland Centre for assessment and again stated they would not reconsider their decision with regards to a residential treatment programme.  Since progress had not been made in addressing the abuse of alcohol, the child's name remained on the Child Protection Register.  Attempts were made to engage the couple and encourage PMcG to attend her appointment at Northlands Alcohol Rehabilitation Unit.  Once again these attempts fell on deaf ears.

(f)        On 27 April 1999 PMcG attended for one session at the Community Addiction Team, but failed to attend any subsequent sessions.  Both respondents failed to attend for contact sessions with T on 28 and 30 April 1999. 

(g)       On 19 May 1999 PMcG failed to attend for her second assessment session at Northlands Rehabilitation Centre and admitted on a number of occasions that she had been drinking excessively.  Consequently the Community Addiction Team and Northlands Assessment Centre stated they would not be offering PMcG any further appointments.

(h)       PMcG met with T on six occasions during the month of May.  On a number of occasions she presented with marks and bruises.  On 25 May 1999 she informed Ms Hayes that PMcL had received a beating at her behest because of the continuous physical assaults that he was subjecting her to.  As a consequence of this on 27 May 1999, PMcG said that she was assaulted by PMcL and she attended for contact with both her eyes badly swollen, right eye presenting almost closed.  It is relevant to note at this time that contact with T was to occur twice weekly.  In the event it was made with T five times in March 1999, seven times in April 1999, seven times in May 1999 but thereafter contact began to diminish.  Contact took place on four occasions out of a possible eight  in June 1999.  On the other occasions neither parent attended for contact giving no explanation at all for the failure.

(i)        July 1999 saw only one contact out of a possible eight take place notwithstanding that contact was still fixed at twice per week.  Sessions were arranged during July and again both parents failed to attend.  No explanation was ever presented to me for this failure except one that related to alcohol abuse.

(j)         On 14 July 1999 a Care Order was granted in respect of T.  Contact was not defined at that time.  Neither of the respondents was having any consistent or regular contact with T. 

(k)       During August 1999 contact took place on only two occasions out of a possible eight and again on all other occasions the parents simply failed to attend without giving any explanation.  Moreover they were invited to the Social Services Office on a number of occasions to discuss the situation but they failed to attend on all occasions.  Not surprisingly Ms Hayes evidence was that the failure to keep commitments and the failure to attend had a disruptive and unsettling effect upon the child.  She was brought to the contact venue and kept waiting for an arrival that was never going to occur.

In evidence PMcG claimed at one stage she may have been ill but could not remember details of her illness.  Rather more frankly PMcL admitted they were drinking heavily at the time.  I must note at this point that I formed the impression of Ms Hayes that she was a thoroughly dedicated and honest social worker who has approached a very difficult task in this instance with remarkable stoicism and a detached analysis.  I reject entirely the allegations made against her that she has been lying or that she allowed an independent assessment to be  compromised by virtue of the physical assault upon her by PMcG in November 1999.

In her evidence Ms Hayes said  that between March 1999 and June 1999, on the occasions when PMcG did attend to effect contact, she had made attempts to genuinely bond with the child and there appeared to be mutual benefits for both child and mother on those occasions.  This evidence alone seems inconsistent with any alleged attempt on her part to tell lies or to unjustly discredit the respondents.  On the other hand she observed that PMcL seemed to be more concerned to generate aggressive attitudes towards the social workers.  Thereafter the contact deteriorated.  However, even when the Care Order was made in July 1999, contact was still available twice weekly and the care plan still had in mind the reunification of parents and child subject of course to the problems of domestic violence, alcohol abuse and the Thorndale parenting assessment being addressed.

            By September, however, Ms Hayes' evidence, which I accept, was that there had been no evidence of any commitment or motivation to address the alcohol problem or the domestic abuse despite numerous attempts by the Social Services to generate interest and action in these regards.  Far from showing evidence of the necessary determination and commitment to contact visits, the contact was diminishing ever further and efforts to avail of help afforded by the Trust regularly spurned.  Accordingly at a LAC review on 2 September 1999 the decision was taken by the applicant to alter the care plan from one of reunification to one of permanency via the adoption route in order to secure T's need for stability and permanency.  At this stage contact with the respondents was  reduced to once per month in line with permanency planning in the new care plan.

            Unhappily the pattern of  violence and alcohol abuse continued.  On 10 September 1999 PMcG presented to the Casualty Department at the Antrim Area Hospital with stab wounds.  Both respondents gave different evidence about this incident.  PMcG said PMcL had been working with a screwdriver when it slipped and "gave her a nip".  PMcL said they had been wrestling in the course of a  quarrel and inadvertently he had stabbed PMcG with the tool.  I believed neither account and I am satisfied that this was yet another example of the indiscipline and violence which sears their relationship.   On 28 September 1999 the respondents presented to Social Services unannounced requesting to see T.  This was not possible as a social worker was unable to facilitate contact at such notice, but it was observed that PMcG attended with a black eye, marks to her face and at least three front teeth missing.  PMcG told me that she had no recollection of any assault on this occasion and her black eye was caused by walking into a door.  It was clear from her demeanour that she was being untruthful. 

            It is significant to note that at this stage, having had two short term foster carers, T was on 22 October 1999 moved to her current foster carers home where she has remained ever since. 

            No contact occurred between the respondents and T in September 1999 or October 1999, the last contact therefore having occurred in August 1999.  Other than PMcL admitting to me that the couple had been drinking to excess at this time,  neither of the respondents gave any adequate explanation for their failure to attend a contact with T.

            On 2 November 1999 a LAC review was held in respect of T.  As in all LAC reviews, the respondents were invited to attend but true to past behaviour failed to appear at the scheduled time.  It was again concluded that at this stage reunification with T and the respondents was no longer an option and it was appropriate that the case be presented to the adoption panel.  It was decided that contact should now be reduced to bi-monthly visits to reflect the reality of the current circumstances.

            There then occurred a significant event.  Immediately after the review, the respondents presented to a Social Services office having consumed an excessive amount of alcohol and were very aggressive.  PMcG then proceeded to assault two members of staff including Ms Hayes both of whom required medical assistance.  The police were summoned.  The respondents then assaulted  each other and were escorted from the premises by police.   Since that date consultations between the couple and social workers had taken place in the presence of their solicitor given their aggressive and unpredictable behaviour.

            I consider it helpful at this stage to stand back and review the situation that had developed in relation to the Trust's plan to the extent that it had reduced the  contact afforded to the parents.  The rationale behind the Trust's thinking, according to Ms Hayes, was as follows.  First, the Trust was confronted with a frustrating but persistent refusal on the part of the parents to undergo parenting assessment.  This continues to be the case right up until the present.  To explain his refusal PMcG in evidence before me made what I believed to be a quite unwarranted and uninformed attack upon the facilities provided at Thorndale Parenting Assessment Centre which I reject in its entirety.  I accept entirely the assessment of the facility made by Mr Law, the guardian ad litem, that it is a perfectly acceptable venue for assessment in the context of a unit which is housing several families at any one time.  The evidence of both respondents in this regard is but one of a number of instances where they have abjectly refused to put the welfare of this child to the forefront of their considerations and to accept and implement steps that had to be taken if reunification and indeed contact with the child was to be reinstated as meaningful concepts.  Secondly, following the same pattern, the respondents, despite promises to the contrary, failed to avail of the services proffered to them  to address the crucial issues of domestic violence and alcohol abuse.  PMcG was patently being less than candid with the court when she denied the extent of the domestic violence that was being visited upon her by PMcL.  Her refusal to face up to this and the consequences of her alcohol abuse in the course of her evidence underlined to me the unreliability that the social workers in this case have encountered.  Similarly PMcG in the course of his evidence was quite unwilling to accept that he cannot ameliorate either of these problems by his own endeavours alone but requires skilled and lengthy assistance.  His unwarranted  attacks upon the various services that were in a position to extend professional help to him are clear illustrations of the intransigence in this regard that has confronted the applicant and made resolution impossible.

The core of the problem in this case is that neither of the respondents in the context of contact visits has even reached the stage where they are prepared to genuinely commit themselves to avail of the professional assistance which has been so readily proffered to them on a large number of occasions.  PMcL is prepared to make promises which he has not the slightest intention of keeping.  In his written statement of the substance of the oral evidence which he was to give before me dated 8 August 2000, he said inter alia:

"I am fully aware that all matters stem from my problem with alcohol and I am resolute that I wish to address and deal with this matter.  I have been off alcohol for over four weeks and have made arrangements to contact the Community Addiction Team and I am waiting on a confirmation of an appointment.  I will be attending this meeting with my partner PMcG."

 

            Even if he had any intention of keeping this promise as outlined in the statement of 8 August 2000, which I frankly doubt, such resolve was soon dissipated because not only did both respondents fail to attend on all occasions during the month of August to discuss the situation with the Social Services, but of course he did not attend any such CAT course.  Moreover, whilst he told me that he has now been off alcohol for three-and-a-half months, there is not the slightest independent evidence of this or any indication that he wishes to have the benefit of professional help.  He clearly exaggerated the four-week period referred to in his written statement (he had not been off alcohol for four weeks at that stage on his own admission) and I am very sceptical of his evidence before me. 

            PMcG made similar protestations of endeavours to seek assistance from the Community Addiction Team in her statement of 8 August 2000.  Once again she did not honour the commitment.  It seems to me that both these parties are quite prepared to make such promises when legal proceedings are imminent, but that as soon as the pressure of the legal process is removed they revert to their intemperate  and indisciplined behaviour even if  it is at the cost of contact with their daughter.  Particularly in the case of PMcG, I am not without sympathy for the problem with alcohol that has bedevilled her and for the domestic violence to which she has clearly been subjected by PMcL.  That sympathy however is dissipated in the wake of her wilful refusal to accept the assistance offered to her to address these problems even when she must be aware that her repeated failure is at the expense of contact with her daughter.

            I therefore share the view of the guardian ad litem, Mr Law, that the long term plan of the Trust as it evolved justifiably reduced the contact between the birth parents and the child.  Mr Law had been involved in the earlier care proceedings and at that stage he had recommended that the only way forward for the couple in terms of proving their capacity to parent T in the long term was for both to engage in a programme of alcohol treatment within a residential setting followed by a sustained period of abstinence supported by Community Alcohol Support Services.  In addition PMcL was to address his violence.  Understandably Mr Law recommended that these areas of concern would have to be comprehensively addressed before any consideration could be given to a parenting assessment. 

As a result the Trust provided the respondents with a time limited period of assessment in which to tackle these issues before permanency plans were to be put into operation.  Mr Law recognised that neither parent responded to the required interventions during the following months after the Care Order and the contact with T diminished and, indeed, disappeared during September 1999 and October  1999.  The violence and the drunkenness on the part of the respondents persisted during these periods as evidenced by the matters I have mentioned above.  Accordingly he felt it was reasonable in the wake of this behaviour for the Trust to reduce contact on  2 September 1999 to a monthly arrangement.  This was not availed of.  His evidence was that it is strongly arguable that by November 1999, a decision could well have justifiably been made by the Trust to make an application similar to the present one under Article 53(4) to cease contact.  Any rehabilitation on the part of the parents would have been a long term matter – perhaps even as long as two years according to Mr Law before a Trust could responsibly start to make decisions about the child's safety with parents in cases of chronic alcoholism – and these parents, despite the Care Order and despite the contact arrangements, had not even begun to resolve the issues.   Very properly he drew my attention, as did Ms Hayes, to the level of disruption in the placement that was being occasioned by the failure to avail of the contact sessions without notice.  In his view, therefore, the decision in September to reduce the contact was not precipitative and he considered  it was appropriate that the Trust plan at that stage became one of long term placement in foster care or adoption.  Contact, therefore, was now seen in terms of birth links and not for bond attachment purposes.   He emphasised, as did the Trust witnesses, that this decision was not cast in stone and could always have been reviewed had the proper level of commitment being sought from the parents surfaced at any stage.  Regretfully this did not occur.

            Contrary to the thinking of Mr Law, which in November might have been to apply to the court to end contact, the Trust, acting I believe with sensitivity to the wishes of the parents, did not make such an application but decided to afford bi-monthly access to the parents.

            I must say immediately that the chances of this measure of contact being successful appear to have been unlikely.  The court of course has the benefit of hindsight, but the age of the child, the number of previous placements, the proximity of the most recent change and the natural wariness of strangers of this vulnerable child, were all likely impediments to her reacting well to birth parents that she scarcely would have remembered from a distant previous contact.  Counsel on behalf of the respondents criticised the reduction to bi-monthly contact and suggested that the contact was being set up to fail by the Trust.  I reject this criticism.

            Apart from the problems I have mentioned, the core of the difficulties encountered in the three bi-monthly contacts that occurred was the absence of  the primary foster carer from those contacts to provide reassurance to T.  Although the primary carer had been prepared to make her services available to ease the path of the contact and to reassure the child by her presence, in the wake of the assault that had occurred, the Trust officers took the view that it would be neither safe nor prudent to expose the foster carer to the respondents in these circumstances.

            Whilst I recognise that the omens were not propitious for a successful contact in these circumstances despite the endeavours of the birth parents to engage the child on each occasion, it must be borne in mind that it was the inconstant and intemperate behaviour of the respondents in the past that occasioned many of these difficulties.  I saw before me in court the video evidence of the third such contact.  The child was clearly extremely distressed during the bulk of the contact that I witnessed and apart from occasional instances, was resistant to comforting.  Apparently this was the pattern of the first and second instances as well. 

Miss Carmel Rocks, who was a social worker and link worker to T at the Family Centre, is an extremely experienced and obviously dedicated worker who did her best to make the contact work.  That it failed is no fault whatsoever of Ms Rocks on any of the occasions.  The fact of the matter is that I suspect only the presence of the primary carer in whom the child reposed confidence and trust would have arrested the situation.  However, I consider that the decision of the Trust to dissuade the primary carer from attending was not only a proper but a wholly responsible one.  The decision not to expose this carer to the risk of violence and attack which the social workers had suffered at the hands PMcG was in my view an appropriate one and occasioned entirely by the outrageous behaviour in November of PMcG.  Identifying the primary carer, with all the attendant risks of subsequent street recognition could well have led to incidents sparked off by the drunken and violent disposition currently exhibited by both these respondents.  Had such incidents occurred, the very placement of this child could have been endangered.             

Moreover, it is significant that other care witnesses in this case namely Mr Mervyn Garrett (who had taken over case responsibility on 14 June 2000) and Ms Margaret Kennedy, a registered general nurse and registered midwife (who assessed the health of the child) both recorded how T was a child extremely nervous of strangers.  They only built up relationships with her in the presence of her carer over a sustained and regular course of visits.  It was entirely the failure of the respondents to avail of the opportunities for contact in the past that rendered them  unable to build up a similar kind of regular and sustained relationship that would have attracted the confidence of this child.  That they were strangers to T was entirely of their own making. 

PMcL asserted before me that the problems of these three bi-monthly accesses were exacerbated by the restrictions in the room where the meetings took place and that during a fifteen minute interlude on the third occasion, outside the confines of the room, the access had progressed normally.  As I have indicated, I have found both of these respondents to be unreliable and I am more impressed by the evidence of Ms Rocks, who was present during this external contact.  Her evidence was that the child was distracted and confused as she was being walked outside.  Whilst she was not crying to the same extent she still was sobbing.  She observed from the child's face that she was anxious and confused.  Not only do I accept Ms Rocks as an independent and honest witness, but her evidence fits the pattern of what I would have expected in the overall context of this contact.

            I have been satisfied by the evidence that these bi-monthly contacts, for the reasons I have given, occasioned this child great distress.  Ms Rocks, with twenty years experience of children and social work, said that she had never come across a child with such a disturbed reaction during contact.  Her experience taught her that children can almost get a sixth sense about particular circumstances, and that this child was fearful even as she was being brought into the access area on the third occasion and was crying before she entered.  It was suggested that the child was perhaps suffering from teething but Ms Kennedy, a woman with a great deal of experience of children of this age, opined that the distress manifest by this child was much more than one would expect from teething problems.  Ms Rocks related that the carers had indicated that the child at the start of the placement in October 1999 had seemed a little jumpy and at times tense.  She slept at the top of the cot with her hands curled for a period of about three weeks.  However, her experience, and my own assessment of the situation, was that this was not unusual when a child of these tender years has been transferred, particularly bearing in mind that this was her third transfer.  These symptoms soon  settled. 

However in the wake of the bi-monthly contact visits, the child continued to be distressed even when she was returned to her foster carers and it took some time for her to feel safe and reassured.  She continued to sob and sigh for a considerable time after the contact.  The foster parents observed that her eating pattern was interrupted as was her sleep pattern.  Ms Kennedy gave evidence that in her assessment of the child there really was no significant gain or loss of weight and although the appetite may have diminished it did not show on any medical graph that she prepared.  Nonetheless she did record the foster carer mother  indicating that after the access visits the child suffered night terrors, sweated profusely and was difficult to pacify.  These symptoms got worse after the visits and whilst they had been present at the start of the placement, they were now more difficult and longer after the bi-monthly visits.  Ms Kennedy concluded that she in her eighteen years experience she had not seen a child as distressed as T in a contact context  as evidenced on the video.

            I am therefore fully satisfied on the basis of this evidence that these bi-monthly visits were occasioning this child unacceptable distress.  Whilst there is no medical evidence before me, common sense dictates that if this acute distress continued to be visited on this child without abatement it could not conceivably be in her medical, physical or emotional interests and risks causing harm to her.

Counsel for the respondents argued that unacceptable delay had been caused in this case by the Trust.  Her submission was that after the bi-monthly contact meeting on 22 April 1999, no decision was taken to cease contact until 1 June 1999 and that the delay thereafter occasioned has prejudiced the respondents.  A court order was made in June 2000 stopping contact as an interim measure. 

Counsel drew my attention to Article 53 of the 1995 Order which obliges the Trust to allow contact.  The only circumstances in which an authority may refuse to allow that contact is if it is satisfied that it is necessary to do so in order to safeguard or promote the child's welfare and the refusal is decided upon as a matter of urgency and does not last for more than seven days.  She argued that contact should have been permitted on at least a bi-monthly basis including 20 June before the court hearing on 26 June 2000. 

            However, Mr Montgomery acting on behalf of the Trust, assured me that the Trust had acted with Article 53(6) in mind in postponing the bi-monthly contact until the court hearing on 26 June 2000 when an order suspending contact was made.  Thereafter the delay that has ensued has not been occasioned by the Trust but by the progress of the court proceedings.  I do not conclude therefore that the delay in this case is either relevant or significant in the overall context of the present application.

            I turn now to consider the legal principles that must govern my conclusions in this case.

1.         In Re B (minors) (Care: Contact: local authority's plans) (1993) 1 FLR 543 the Court of Appeal dealt with a case where a local  authority had applied for authorisation to refuse contact under Section 34(4) of the Children Act 1989 (which contained similar provisions to the 1995 Act).  The court concluded:

(a)        There was a presumption of continuing reasonable contact between the parent and the child in care unless or until a court order under Section 34(4) of the Children's Act 1989 was made.  There are similar provisions in the 1995 Act at Article 53(1) and 53(4).  I therefore start of by recognising the presumption of continuing reasonable contact.

(b)        In Re B the question arose as to the interplay between the local authority's plans and the jurisdiction of the court and the proper exercise of its discretion under the wide range of orders available under the Children Act 1989.  The court held that contact applications generally fell into two categories, those which ask for contact as such and those which were attempts to set aside a Care Order.  In the first category, the proposals of the local authority must be given consideration by the court but Parliament had given the court, and not the local authority, the duty to decide on contact between the child and those concerned in Section 34(1) of the 1989 Act.  Butler-Sloss LJ (as she then was) said at page 551E:

"The presumption of contact, which has to be for the benefit of the child, has always to be balanced against the long term welfare of the child and particularly where he will live in the future.  Contact must not be allowed to destabilise or endanger the arrangements for the child and in many cases the plans for the child will be decisive of the contact application.  …  The proposals of the local authority, based on their appreciation of the best interests of the child, must command the greatest respect and consideration from the court, but Parliament has given to the court, and not to the local authority, the duty to decide on contact between a child and those named in Section 34(1).  Consequently the court may have the task of requiring the local authority to justify their long term plans to the extent only that those plans exclude contact between parent and child."

 

Dealing with the second category of cases, namely contact applications by parents to attempt to obtain the returning of the children, the judge said at page 552D:

"As I have already said their (the local authority) plan has to be given the greatest possible consideration by the court and it is only in the unusual case that a parent will be able to convince the court, the onus being firmly on the parent, that there has been such a change of circumstances as to require further investigation and reconsideration of the local authority plan.  If, however, a court was unable to intervene it would make a nonsense of the paramountcy of the welfare of the child, which is the bedrock of the act, and would subordinate it to the administrative decision of the local authority in a situation where the court is seized of the contact issue.  That cannot be right.  But I would emphasise that this is not an open door to courts reviewing the plans of local authorities. "

 

            In addition I have considered the case of Re E (a minor) (Contact Order: contact) (1993) FAM 57 where Simon Brown LJ said:

"If on a Section 34(4) application the judge concludes that the benefits of contact outweigh the disadvantages of disrupting any of the local authority's long term plans which are inconsistent with such contact then … he must give effect to it by refusing the local authority's application to terminate the contact."

 

            Accordingly, therefore, the authorities make it clear that although a court should not readily make an order contrary to the plans of the local authority, it must still apply the welfare principle as the paramount consideration and this I intend to do bearing in mind that the thrust of the Children Order is to ensure that where possible parents continue to have contact and thus responsibility for their children even when they are in the care of an authority.  I also recognise that there is no rule of law or practice which requires contact between a parent and child in care to cease when an application  to free that child with or without parental agreement is contemplated or has been brought before the court.  In an application by a Trust seeking an order authorising a Trust to refuse to allow contact between a child and its parents, the onus rests on the Trust to justify the refusal of contact (see Re HGH (Contact: child in care) (unreported Higgins J 24 June 1998)).  I must also bear in mind the decision in Re T (Termination of contact: discharge of order) 1997 1 FLR 517 where it was stated per in curiam that an Article 53(4) order should not be made whilst there remains a realistic possibility of rehabilitation of the child with the person in question nor should one be made simply against the possibility that circumstances may change in such a way as to make termination of contact desirable.  For such an order to be justified there must be a foreseeable (and not remote) probable need to terminate contact.

            Finally, I wish to make it absolutely clear that I recognise that freeing proceedings have been launched in this matter and will be heard in the relatively near future.  The decision I now take concerning contact will not determine the freeing application and that matter will be looked at independently on its own merits.  The view of the Trust that rehabilitation is not possible is therefore an issue that has yet to be finally determined and accepted by the court and this is not the occasion to do so.  I reiterate that the principle of Re B is that whilst the proposals of the Trust must at this stage command the respect and consideration from the court, I must view this case on the basis that the child's welfare is the paramount consideration.

            In this context I must now turn to consider Article 3 of the 1995 Order.  Article 3(2) obliges the court to have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.  Article 3(5) states that:

"where the court is considering whether or not to make one or more orders under this order with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all."

 

            Article 3(3) sets out the welfare checklist as follows:

(a)        The ascertainable wishes and feelings of the child concerned

 

T is too young to express her wishes and feelings in relation to these proceedings.  However, I consider the guardian ad litem makes a valid point that at the very least the contact video recorded at Ballymena Family Centre on 20 April 2000 (and not 20 February 2000 as recorded by him) and the evidence of Ms Rocks on the other two bi-monthly visits do indicate a level of unhappiness and distress beyond that which one could regard as acceptable for contact visits. 

(b)       The physical, emotional and educational needs of T

            I have formed the conclusion that the evidence I observed in the video and the accounts of the bi-monthly visits and their aftermath given to me by Ms Rocks, indicate that the emotional needs of this child are clearly being adversely affected by these bi-monthly contacts for the reasons which I have indicated above.  I believe the difficulties have been largely contributed to by the respondents' failure to maintain consistent contact in the past and the attack on the social worker which prevented the primary foster carer being present.  I am also satisfied that the child was emotionally upset for periods considerably beyond the length of the bi-monthly contact itself.  I have concluded that the night terrors, the disturbance of the sleep pattern, the disturbance of appetite and the signs of emotional insecurity following these parental contacts are manifestations of an adverse effect on this child.

(c)        The likely effect on the child of any change in circumstances

            There has been no contact with the birth parents since 21 April 2000.  Since that time the child has apparently settled back into normal sleeping and eating routines and is becoming increasingly confident within the placement, albeit that she is still somewhat wary of strangers.  It is clear from the evidence before me that the child has no attachment or bond with her parents and seems to regard them currently as strangers.  I do not believe it is in the interests of the welfare of this child that she should be returned to a situation which is clearly occasioning her unacceptable distress and where I believe there is a complete lack of commitment or capacity on the part of the birth parents to sufficiently alter their own behaviour so as to ameliorate the distress occasioned to T in these circumstances.  The likely effect of a change which involves renewed contact in these circumstances is that the child will be occasioned unacceptable distress.

(d)       The child's age, sex, background and any characteristics of her which the court considers relevant

 

This is obviously a little girl who is very wary of strangers and has suffered three changes in placements already.  I consider the evidence persuades me that she is vulnerable in these circumstances and that this characteristic alone is relevant to the dangers that arise if she is yet again exposed to a distressing situation such as that occasioned by the three bi-monthly visits in the past.  I do not believe it is in her best interests that this characteristic vulnerability be exposed again to such distressing contacts. 

(e)        Any harm the child has suffered or is at risk of suffering

            As I have already found, I consider that the bi-monthly visits are distressing and disruptive for T.  I accept entirely the evidence related to me of the effect that these visits have had on the child both during and after their occurrence.  I accept the view of the guardian ad litem that the extreme level of distress caused as a result of these contact sessions has clearly impacted negatively on the child's sense of security and routine.  I reiterate that I consider that currently I do not believe that the birth parents are capable of so altering their pattern of behaviour and alcohol abuse so as to prevent or alter the harm which this level of distress may well cause this child to suffer in the future if these visits are continued.

(f)        How capable of meeting her needs is each of her parents and any other person in relation to whom the court considers the question to be relevant

 

Regretfully on the evidence before me I am not satisfied that at this stage either of these birth parents are capable of meeting the needs of this child in terms of contact.  Their refusal to engage in programmes of alcohol treatment within the residential settings, their rejection of parenting assessment proposals, their inability to engage in sustained abstinence from alcohol or to avail of alcohol support services, PMcL's avoidance of anger management suggestions and their failure in the past to maintain a regular contact pattern all serve to persuade me that they are not capable of meeting the needs of this child in the context of contact arrangements that are either feasible or acceptable within the context of what is possible.  This child is now in a caring, constructive and stable environment and in the interests of the welfare of this child I must ensure that contact does not destabilise or endanger the present arrangements so as to occasion this child chronic or serious distress.  I believe that direct contact (as opposed to indirect contact which I consider should continue in its present format) is therefore not conducive to the welfare of this child.

I have, therefore, concluded that notwithstanding the presumption of continuing reasonable contact between parent and child, I am of the view that it is appropriate for this court to make an order under Article 53(4) of the 1995 Order authorising the authority to refuse to allow direct contact between the child and the respondents.  Indirect contact should continue.  In doing so I have balanced against that presumption of contact the long term welfare of the child.  I have considered the proposals of the Trust and accorded them respect and consideration to the extent only that they exclude contact between T and the birth parents.  Primarily, however, I have decided this case on the basis of the paramountcy of the welfare of the child. 

Accordingly I dismiss the application of the parents before me under Article 53 and grant the application of the Trust.

 

 


 
 IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

  FAMILY DIVISION   ------------   IN THE MATTER OF THE CHILDREN (NORTHERN IRELAND) ORDER 1995   RE:  T (TERMINATION OF CONTACT)   ------------       JUDGMENT       OF       GILLEN J       ------------