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High Court of Justice in Northern Ireland Family Division Decisions
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Cite as: [2001] NIFam 3
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Neutral Citation no. [2001] NIFam 3
Ref:
GILE3345
Judgment: approved by the Court for handing down
Delivered:
09.02.2001
(subject to editorial corrections)
GILLEN J
The matter that I have to determine in this judgment concerns an application by the North & West Belfast Health & Social Services Trust ("the Trust") pursuant to Article 53(2) of the Children (Northern Ireland) Order 1995 ("the 1995 Order") for an order prohibiting contact between the minor, D, and Ms RMcG.
The relevant facts in this case are comparatively few but the legal issue is difficult. At the time of this determination, the child is the subject of an interim care order to the effect that the child be placed in the care of the applicant Trust, which order expires on the 28 February 2001. The court has also made an order authorising the Trust to keep the child in secure accommodation until 23 February 2001 pursuant to Order 44 of the 1995 Order.
The history of this child is an unhappy one. There has been an escalating history of behavioural problems since about October 1997, mainly relating to his aggressive behaviour within his own home and schools. Additional concerns have centred around involvement in abuse of solvents and his alleged involvement in criminal activity. The child has been considered by child psychiatry since about 1997. The Trust have made a number of attempts to address his behaviour through his referral to Whiterock Family Centre and the Adolescent Psychology and Research Unit (APRU). On 30 May 2000 the court granted an interim care order in respect of D in response to concerns that he was absconding from his placement at Glenmona Resource Centre, was engaging in suspected substance abuse, and was associating with persons in the community who were inimical to an appropriate lifestyle for the boy. In terms, no appropriate adult was exercising care or control for him when he was missing from his placements for substantive periods.
The evidence before the court was that during the time this boy was regularly absenting himself from Glenmona, he had been allegedly seen on several occasions in the company of Ms RMcG a female aged 37 years of age. Ms CH, social worker, gave evidence before me that there was clear evidence of a significant level of association between Ms RMcG and D during his absence from Trust accommodation. There was apparently an extensive history of social work involved with Ms RMcG and her own children, three of whom remain in care and are subject to care orders as a result of parental inability to adequately meet their needs. Ms RMcG apparently leads a very transient lifestyle and has a number of recent changes of address. I am told she has a significant criminal record and Social Services did not regard her as a person who could provide appropriate care, protection or guidance for D. Evidence was adduced that he resided with Ms RMcG during his periods of absence from the placement, that she had permitted him to engage in unauthorised driving of motor vehicles, and in short it was felt that in the absence of any appropriate adult exercising care or control over him, the risks related to his association with Ms RMcG and the lifestyle that she exposed him to constituted a grave risk to his moral well-being as well as creating a danger of him suffering significant harm.
In short, on the basis of the evidence before me, I consider that factually it is inappropriate that this boy should continue to have contact with Ms RMcG in the circumstances. She is presently facing criminal charges and one of the terms of her bail is that she should not make contact with D.
Ms RMcG was represented at these proceedings and through her solicitor indicated that while she denied that she had done anything wrong, she would consent to an order being made under Article 53(2). D's mother was also represented at the proceedings and indicated that she was very anxious that an order be made under Article 53(2) prohibiting contact with Ms RMcG. D himself was represented and indicated that he also consented to an order being made in these terms. Finally, the guardian ad litem who was represented by Mr Keenan, solicitor, indicated that she also felt that such an order should be made.
It would be perilously easy for me to accede to the wishes of all the parties in this case and to make an order under Article 53(2) prohibiting contact between D and Ms RMcG. Regretfully, however, I consider that the consent of the parties has assumed what it is necessary to prove. It must be proved that such an order would be consistent with a purposive construction of the 1995 Order Article 53(2). I must ensure that such an order would not constitute an unjustified departure from the purpose of the Act and an unwarranted extension of the law. In terms, does Article 53(2) import a prohibitory jurisdiction?
It is necessary at this stage to set out Article 53 in extenso:
"Parental Contact, etc with Children in Care
53(1) Where a child is in the care of an authority, the authority shall (subject to the provision of this Article) allow the child reasonable contact with –
(a) his parents;
(b) any guardian of his;
(c) where there was a residence order in force with respect to the child immediately before the care order was made, the person in whose favour the residence order was made; and
(d) where, immediately before the care order was made, a person had care of the child by virtue of an order made in the exercise of the High Court's inherent jurisdiction with respect to children, that person.
(2) On an application made by the authority or the child, the court may make such order as it considers appropriate with respect to the contact which is to be allowed between the child and any named person.
(3) On the application made by -
(a) an person mentioned in sub-paragraphs (a) to (d) of paragraph (1); or
(b) any person who has obtained the leave of the court to make the application;
the court may make such order as it considers appropriate with regard to the contact which is to be allowed between the child and that person.
(4) On an application made by the authority or the child, the court may make an order authorising the authority to refuse to allow contact between the child and any person who is mentioned in sub-paragraphs (a) to (d) of paragraph (1) and named in the order.
(5) When making a care order with respect to a child, or in any family proceedings in connection to a child who is in the care of an authority, the court may make an order under this Article, even though no application for such an order has been made with respect to the child, if the court considers that the order should be made.
(6) When making a care order with respect to a child, or in any family proceedings in connection with a child who is in the care of an authority, the court may make an order under this Article even though no application for such an order has been made with respect to the child, if the court considers that the order should be made.
(7) An authority may refuse to allow the contact that would otherwise be required by virtue of paragraph (1) or an order under this Article if –
(a) the authority is satisfied that it is necessary to do so in order to safeguard or promote the child's welfare; and
(b) the refusal –
(i) is decided upon as a matter of urgency; and
(ii) does not last for more than seven days.
(8) An order under this Article may impose such conditions as the court considers appropriate.
(9) The Department may by Regulations make provision as to -
(a) the step to be taken by an authority which has exercised its powers under paragraph (6)(b) the circumstances in which, and conditions subject to which, the terms of any order under this Article may be departed from by agreement between the authority and the person in relation to whom the order is made;
(b) notification by an authority of any variation of suspension of arrangements made (otherwise and under an order under this Article) with a view to affording any person contact with a child to whom this Article applies.
(10) The court may vary or discharge any order made under this Article on the application of the authority, the child concerned or the person named in the order.
(11) An order under this Article may be made either at the same time as the care order itself or later.
(12) Before making a care order in respect of any child the court shall –
(a) consider the arrangements which the authority has made or proposes to make, for affording any person contact with a child to whom this Article applies; and
(b) invite the parties to the proceedings to comment on those arrangements."
In Re: W (Section 34(2) Orders) Section 34(2) of the Children Act 1989, (which is identical to Article 53(2) of the 1995 Order) was construed by the Court of Appeal in England. In that case the local authority had proposed that there should be an order for contact between W and his mother at its discretion. The guardian ad litem had sought a specific order prohibiting any exercise of the local authority's discretion to permit staying contact. The Court of Appeal held that on its true construction Section 34 did not create a prohibitory jurisdiction. It is crucial to appreciate that this is a question of the jurisdiction of the court to act rather than simply assuming that I must act in accordance with the paramouncy of the welfare of the child. At page 506 of Re: W, Thorpe LJ said:
"Against that background Miss Hyde repeatedly submitted that since the court is under a duty to promote the welfare of the child therefore the court must have jurisdiction to prohibit contact to a child in care. That seems to us a non sequitur. Of course in so far as the court has jurisdiction, in the exercise of that jurisdiction it must put welfare paramount. But the paramount principle does not help to determine the jurisdictional boundaries."
Later Thorpe LJ said:
"It is in our judgment important to construe Section 34 in the context of the statute as a whole and in recognition of the statutory objectives. Perhaps the most striking reform introduced by Part IV of the statute was to shift the power from the court to the local authority on or after the making of the care order. … Another legislative objective was to impose on local authorities a clearer and a higher duty to promote contact between children in care and parents and others having significant part in their lives. Taking these two corner stones of the Part IV provisions in conjunction we are of the opinion that the primary purpose of Section 34 is to impose obligations and restraints on local authorities with children in care. The obligation is a duty to promote contact. The restraint is upon their discretion to refuse contact unless they have persuaded the judge that such a refusal is necessary. The power of the judge to supervise and control is the power to require the local authority to go further in their promotion of contact than the authority itself considers appropriate. The other power is to monitor the local authority's proposal to refuse contact in order to ensure that its proposal is not excessive. We do not believe that the legislation ever intended the jurisdiction of the judge under Section 34 to be deployed so as to inhibit the local authority in their performance of its statutory duty by preventing contact which the local authority considers advantageous to welfare."
The court concluded at page 509(b):
"On its true construction Section 34 does not create a prohibitory jurisdiction."
Mr Lowry submits that this was a decision peculiar to its own facts. He argues that the court is simply saying that it would not inhibit the authority from carrying out its statutory duty or fetter its discretion in so doing. He argues that it is exactly the opposite in this case and that the court is being asked to assist the Trust to carry out its statutory duty. In other words in Re: W he submits that the court felt that it would be disadvantageous to the Trust to fetter its discretion whereas in this instance it would be positively advantageous to assist the Trust. He seeks a purposive construction of the order to render assistance to the Trust in carrying out its duty.
Mr Lowry also submits that an analogy is found in Private Law Applications under Article 8 of the 1995 Order. He drew my attention to Nottinghamshire County Court v P (1993) 2 FLR page 134 where the court held that the term "contact order" included a situation where a court is required to consider whether any contact should be provided for. An order that there should be no contact was held to fall within the definition of "contact order" in Section 8 of the Children Act 1989. It is right to say, however, that in a subsequent decision, Re: H (Prohibitive Steps Order) (1995) 1 FLR 638, the Court of Appeal made a Prohibitive Steps Order against a mother's former co-habitant preventing him from having or seeking contact with the children to whom it was considered he posed a risk. It was held that it was only by this means that the order could be directed (and thus enforced) against the man. Butler-Sloss LJ commented that had a "no contact" order been made it would have been directed against the mother who would thus have been obliged to prevent contact. That would have been inappropriate in this case and she neither wanted the children to have such contact nor had she the power to control it. Clarke, Hall and Morrison on Children Volume 1 at paragraph 654 records –
"In light of these decisions it would now seem that the appropriate order for prohibiting contact is determined by considering against whom it should be directed. If it is against the person with whom the child is living or is to live then an order for `no orders' should be made. If, as seems more likely to be the case, it is against some other person, then a prohibitive steps order is appropriate."
I have concluded that Re: W is a decision that must govern my approach to this case. Consequently I do not consider that Article 53(2) does create a prohibitory jurisdiction. I am reinforced in this conclusion by the academic assessments of Re: W. In Children Law and Practice, Hershman McFarlane Volume 1 Section D paragraph 1321, relying on the authority of Re: W, the author states –
"The court does not have the power to make an order that there shall be no contact between the child and a particular person."
In Family Law April 2000 Volume 30 at page 236 there is an interesting commentary on Re: W which emphasises the importance of this case in defining the boundaries of the respective powers of the court and the local authority. I share the view therein expressed that this case represents a purposive construction of that section of the Act and is a clear exposition of the policy in relation to the respective roles of courts and local authorities. It seems to me that a close perusal of the 1995 Order at Article 53 exposes these roles. Effectively the spirit of the Order is to set aside the former power of the court in wardship and to remove from the court any continuing control over children after the making of a care order unless or until a further application is made to the court. Responsibility for the child now passes to the local authority in the wake of a care order. Further arrangements for the child, by virtue of the care order, have effectively now been handed over to the local authority. This is not to suggest an abdication of responsibility by the court but rather that it acts in accordance with the intention of the legislation. The primary purpose of this Article is to impose obligations and restraints on local authorities in respect of children in care. The obligation cast on the authority is the duty to promote contact in the instances set out in Article 53(1). Thereafter there is restraint upon their discretion to refuse conduct in limited circumstances unless they first persuade a judge that such refusal is necessary.
Article 53(4) provides an instance where Parliament has given to the court the duty to decide on contact between the child and those parties named in Article 53(1). Even then the court simply authorises the authority to refuse contact still leaving the discretion within the Trust. It is significant that the category named in Article 53(1) does not of course include a person such as Ms RMcG. She is simply a stranger who has befriended the child and therefore there is no duty whatsoever cast on the Trust to promote contact with her and accordingly there is no need for the court to make any order authorising the authority to refuse contact. It would be entirely incongruous if, as Re: W indicates, the court does not have the power to make an order prohibiting a local authority from allowing contact between the child and a parent but did have the power to make an order prohibiting the local authority from allowing contact between a child and some other person. If Article 53(2) permitted a prohibitory no contact order to be made in respect of the contact allowed between the child and any named person, it would be entirely incongruous to also have Article 53(4) whereby on application by the authority or the child, the court may make an order authorising the authority to refuse to allow contact. What would the purpose in this be if it could already be done under Article 53(2)? The answer of course is that as Re: W has indicated, Article 53(2) does not envisage a prohibitory jurisdiction. It is not intended to ever fetter or inhibit the local authority in the performance of its statutory duty. Whilst there may be a general duty to promote contact where it is in the interests of a child, there is no obligation or duty on the Trust in this instance to permit contact with Ms RMcG. Just as the Trust can prohibit any stranger contacting or interfering with any child who is subject to a care order, so it is within their discretion to refuse contact with Ms RMcG. I do not believe that the purpose of this Article is to involve the court to police those areas where the discretion has been properly vested in the Trust and they have taken the appropriate decision.
Accordingly, whilst I have enormous sympathy with the view of the Trust that it is inappropriate for this child to have contact with Ms RMcG, that is not a decision that falls to be enforced by a prohibitory order pursuant to Article 53. In Re: D & H (Care: Termination of Contact) (1997) 1 FLR 841, where the Court of Appeal was considering an order from a judge to phase out a mother's contact with her daughters, the court held that it was inappropriate and inadvisable to make such an order phasing out parental contact under Section 34(2) of the 1989 Children Act and that in all the circumstances the appropriate order would have been an order under Section 34(4) authorising the local authority to refuse contact. I do not believe therefore that Article 53(2) is meant to be used in this prohibitory fashion now contended by the Trust and that if the Trust consider that injunctive relief is required against this woman then they must investigate avenues other than Article 53(2) recognising of course that 53(4) does not apply to someone in the category of Ms RMcG.
In all the circumstances therefore, despite the exhortations on me by all the parties, I do not consider that in this instance the court should make an order under Article 53(2) prohibiting contact between the child and Ms RMcG.