High Court of Justice in Northern Ireland Family Division Decisions

Background

(i) Two children namely K (now 4 years 10 months of age) and S (now 3 years 7 months of age) are the subject of an application before this court by the Trust under Article 53(2) of The Children (NI) Order 1995 ('the Children Order") to reduce contact, and a further application under Article 18 of the Adoption (Northern Ireland) Order 1987 ("the 1987 Order").

(ii) Both children were taken into care on November 2003 in the aftermath of allegations of non-accidental injuries allegedly caused to S by her parents, M (mother) and P (father).

(iii) The children were made the subject of a care order on 13 December 2005. That order was appealed by P, which appeal was rejected by the Court of Appeal in Northern Ireland on 24 April 2006.

(iv) The children remained with foster carers, Mr and Mrs X until 10^th July 2006 having been in that placement for approximately two and a half years. The care plan approved by the Court in December 2005 had envisaged permanence by way of adoption for these children.

(v) The present placement is intended to be the children's permanent placement either pursuant to the Article 18 application to free for adoption and a subsequent Adoption application, or by long term foster care. The present carers are dually approved and informally matched by the relevant Board Adoption Panel on 22 June 2006.

(vi) The trial judge at paragraph 45 of his judgment recognised that "the return of either child to either parent within any timescale conducive to their welfare was impossible", and the care plan proposing that the children be transferred to a permanent placement (away from the family) with a view to adoption was approved.

(vii) The care plan approved by the trial Judge is referred to in Cheryl Clarke's report dated 6 July 2006 at page 3, and in the Guardian ad litem's report paragraph No 57. The contact at December 2005 was twice per week. The trial Judge approved the Care Plan which proposed a reduction of contact to once per week after the making of the Care Order, and then to twice per month once the children were transferred to a new placement. Ms Clarke's report indicates that there was discussion between the Guardian ad litem and the Trust that the Care Plan be amended to reflect a further reduction to once per month post freeing, however the judgment stipulated that a further reduction beyond twice per month would be discussed at the next scheduled LAC review [12 January 2006] and if there were any disagreements in relation to contact that the matter should be brought back to Court. Paragraph 37 of the judgment refers.

(viii) In light of P's appeal, which was unsuccessful, the Trust's proposed care plan in respect of reducing contact could not start to be implemented until after the Appeal decision was delivered on 24 April 2006. Shortly after that contact was reduced from twice per week to once per week.

(ix) At the next Looked After Child review on 31 May 2006 the Trust decided that it was in the children's best interests to reduce contact to once per month, after the placement transfer and reduction to twice per month. The parents did not agree this decision, and hence the Trust lodged an Article 53(2) application dated 3 July 2006.

(x) Contact was further reduced from weekly to twice per month in July when the children were transferred to the dual approved carers. This was in accordance with the trial Judge's approval of the care plan.

(xi) At a further Looked After Review on 17 July 2006 the parents voiced their objection to contact being reduced to once per month pending the hearing of the freeing application.

The Trust's Case

The Trust state that both S and K's new placement is a great geographical distance from their birth parents, and in order to facilitate contact between the children and their birth parents the children will have to endure long and tiring journey's and disruption from placement at such a young age. This argument was rejected by M who, in her statement dated 19 September 2006 at paragraph 34 states that she is willing to travel closer to the children's new home so that they do not have long and tiring journey's. There are of course issues of confidentiality to consider.

The Social Worker acknowledged that S has not had the same relationship with her birth parents as K, and the impact of reduction in contact will be less significant for S.

Ms Clarke concludes that in her opinion, a high level of contact with his birth parents will make the work to help K settle in his new placement more difficult and confusing for K, though no evidence of K being unsettled was tendered, and neither Ms Clarke nor Mr McDaid were presented by the Trust to formally prove their two written Statements of Evidence. It is noted from the discovery that Ms Clarke was on leave on 25 September 2006 and this was known by the Trust since at least 27 August 2006.

In essence, the trust plan to further reduce contact prior to freeing is because this accords with the plan for permanency.

The Trust also feel a high level of contact 'will be possibly disruptive for K' when he is trying to establish a routine at his new school.

It is accepted that the Trust is trying to provide K with a clear message for permanency and security within his capacity as a four year old child.

Ms Clarke believes that the current level of contact does not allow S to settle. 'It is my opinion that the current level of contact is not only compounding this toddler's past trauma, and her move from her previous carers, and confusing her more'. No actual evidence to support this was given, and as stated above the author of these professional opinions was not called to substantiate her views.

Dr A McKinney was also involved with the carers in respect of K's emotional development.

The letter from Ms Clarke was a referral to Dr McLaughlin for 'some support and advice in relation to the above named young children'. The referral firstly sought 'a couple of consultations' for the new carers to support them though the transition. Secondly, Ms Clarke asked to have some insight into how the proposed reduction of contact from once per week to twice per month, and then reduced to once per month, will impact on the children and how best to introduce the reduction. It is noted that this letter was sent just days after the Looked After Review on 31 May 2006 when the Trust confirmed the earlier decision to reduce contact from once per week to twice per month at the time of placement change, and to further reduce contact to once per month.

The LAC minutes for 12 January 2006, 31 May 2006 and 17 July 2006 are all disclosed. The crucial minutes are those of 31 May 2006 and 17 July 2006. Page 135 of the main discovery bundle, Minutes of S' LAC, 31 May 2006 refers to Dr McLaughlin meeting the children when a psychological assessment of the children was deemed necessary. 'Participants agreed that Cheryl too would need support to manage this case through the transition period and it was agreed that she should consult with Dr L McLaughlin for advice on issues that may arise.' The comments in respect of Dr L McLaughlin are reiterated in the minutes of K's LAC Review of same date.

At the LAC on 17 July 2006 (Page 147, 154, 159/160 and 165/166 of Discovery) questions were raised about the necessity to engage Sally Wassell. See also page 34 and page 40 of discovery in additional bundle. (Ms Wassell was a joint independent expert engaged by both parents and Trust during the Care application.) The Trust decided to leave this decision to their Counsel.

(i) the children's overwhelming need to develop attachments to their new

carers;

(ii) the frequency of contact and what happens during contact, to include the parents emotions, is confusing for the children, and gives them a mixed message;

(iii) Ms Smyth BL explained that the Trust engaged Dr L McLaughlin to assist with the children's planned move. Dr McKinney was involved with the new carer, and to consider K's emotional needs.

(iv) Ms Smyth BL commented that the parents missed 11 appointments

with Social Services to talk about contact - this is set out at paragraph 9.15 of the Guardian ad litem's report.

(v) Finally Ms Smyth BL claimed that the level of fortnightly contact was adverse to the children. Their over whelming need at the moment is to settle in their new placement, but this was compounded by the parents.

Mrs Devine explained that the parents have not come to terms with the permanency placement. The parents believe the children will return to their care. Mrs Devine referred to an article by Catherine Macaskill, which suggests that this attitude undermines the placement. It creates a level of confusion. Mrs Devine referred to page 28 of the small bundle, contact session on 19 September 2006 during which, at the end, P cried in front of the children.

P has not availed of Adoption Counselling, and M to date has indicated that she was not ready for counselling.

Mrs Devine referred to page 36 of Ms Sally Wassell's report dated 12 September 2005 prepared on a joint basis for the Care Proceedings (page 94 of Bundle) which referred to each parent's difficulty at that time in respect of maintaining direct contact. During the contact session on 19 September 2006 P's loss was evident to the children.

Mrs Devine was asked about the risks to K and S in delaying the reduction from now until the determination of freeing, listed on 29 January 2007. Mrs Devine said there was potential to undermine the placement. She said there was more than explicit messages; there was an atmosphere during contact. And this is at a crucial stage for the children developing attachments. It is like asking the children to do two things at the same time – prepare to work with them towards permanency, and on the other had to maintain twice monthly contact with the Birth Parents.

Mrs Devine was asked about the impact of the current level of contact upon the present carers – she said they were finding it particularly stressful. This is not contained within the Trust's reports or discovery. They have indicated their willingness to meet with P and M, however the parents have not availed of this opportunity.

Mrs Devine accepted that K reacts very positively to contact with his father. The new carers told the Trust that K had told them that P told K that people are trying to stop the contact. This is noted in the contact sheets.

Mrs Devine stated that K has less 'outbursts' during the week he does not have contact. This was not contained within the Trust reports.

Mrs Devine explained that the children's previous carers were going on holiday, and rather than place the children into respite, they were placed with their dually approved carers.

Dr McKinney's role is to assist the carers to develop strategies to cope with K's behaviour, particularly his dislike of certain issues. Dr McKinney wants the carers to understand the children's behaviours.

Ms Smyth BL asked Mrs Devine about Sally Wassell; Mrs Devine stated that the Trust did not feel it was necessary to re-engage her; though the Trust did give it consideration. The Trust however felt that there were no change in circumstances since Mrs Wassell's report of September 2005. The Trust did not wish anything to cause further delay for the children.

It should be noted that a further C2 dated and issued on 26 September 2006 was also filed by P to seek leave to engage Professor Triseliotis. The title again is the 1995 Order, but this application appears to relate to the freeing application.

The Trust opposed this application and indeed any delay by engaging experts at that stage.

I inquired if an advanced hearing date on 4 December 2006 for freeing would facilitate the parties, so that freeing and the reduction of contact could be considered together. The Trust welcomed the proposal of an earlier date, and claimed that no expert was needed.

There was some discussion amongst the parties that the scheduled trial date of 29 January 2007 could not be met. The Court rose at 2.10pm and resumed at 2.30pm. It then emerged from the Guardian ad litem's Counsel that M had a planned caesarean (date not specified) and that Guardian was certainly in favour of an earlier trial date for the freeing.

Ms Callaghan BL on behalf of M referred to page 103 of the main discovery Bundle, namely the decision of K's LAC held on 17 July 2006. Paragraph 6 refers to the Trust seeking a report by Sally Wassell. Mrs Devine explained that this would be considered at the next LAC review, if felt necessary. At present, after considering Mrs Wassell's report of 15 September 2005, and the fact that there is no change in respect of the parents, therefore the Trust felt it was not necessary to re-engage Sally Wassell.

Mrs Callaghan BL indicated that her client is now willing to meet the new carers if this will help the children.

Ms Callaghan BL again rehearsed various references in the Bundle to the Trust considering re-engaging Sally Wassell as an expert in this case (page 118; page 147; page 165). At S' LAC on 17 July 2006 it is stated (page 147 discovery) 'Given the high degree of contact and the protracted procedure that has taken place there is a question raised as to whether or not Sally Wassell should be asked to give her views again on the children's situation'. Ms Callaghan BL suggested to Mrs Devine that the discovery shows that 'for substantial periods during contact, contact is positive'. The Trust accepted this, but also stated that on occasions contact is difficult for the parents, for instance reliance upon sweets and food during contact.

Page 171 of discovery is a supervised contact note of 14 September 2005 which depicted a very happy contact session for both children and parents. Mrs Devine was asked what was the purpose of contact. She advised that the purpose of contact for a child who had moved to a permanent placement is to provide that child with a sense of security. She stated that regardless of positive interactions, contact is not able to provide security for these children in their placement. There is a great risk that contact might undermine the placement.

Page 53 of the supplemental bundle, is a Minute of the latest LAC on 17 July 2006 which states that there have been no significant effects upon the children since the reduction of contact to twice per month.

The parents are not in agreement to the further reduction to once per month so the Trust has brought the matter back to Court.

Mrs Devine accepted that these two children love their parents and they enjoy some aspects of contact. However Ms Sally Wassell and Mrs Loughrey NSPCC have highlighted concerns in respect of contact. Mrs McGrenera QC highlighted positive contact at pages 229, 232, 234, 238 and 239 of the discovery bundle.

Mrs McGrenera QC suggested the children have a strong bond with their parents. Mrs Devine did not accept this, though noted the bond between K and P. Mrs McGrenera QC noted page 112, 118 et al where mention was made of re-engaging Sally Wassell. The strong bond was mentioned at page 43 of the Care Order Judgment, and the previous Social Worker, Cathy Meenan also mentioned the strong bonds. Mrs Devine accepted that was the evidence provided to the Court at that time.

Mrs McGrenera QC suggested that this bond is still evident by looking at the contact sheets, particularly K's contact with P. Mrs Devine accepted that it is clear that a positive bond still exists. However K made few comments when contact was reduced from weekly to fortnightly.

Mrs McGrenera QC noted in the discovery a decision was made not to engage any more experts. Mrs Devine explained that this was Mr Pat McDaid's decision.

Mrs McGrenera QC referred to the Minute of the LAC on 17 July 2006 page 165 of discovery, when the Trust did give consideration to engaging Sally Wassell again.

Mrs McGrenera QC questioned why the Trust was not seeking advice as to the appropriateness of contact reduction, but rather was seeking tools to help the children understand the reduction. Mrs Devine stated that Dr McLaughlin does not see herself as an expert; her role is to enhance the work with the carers.

Mrs McGrenera QC asked why the Trust was moving head without an expert. Mrs Devine explained that Dr McLaughlin's role is to help with implementing the Trust's decision to reduce contact from twice per month to once per month if the court authorises this reduction. Mrs Devine explained these issues were put to Sally Wassell last year, and was adamant that there was no justification for instructing an expert again, as the Trust has the information upon which to base a decision.

Mrs McGrenera QC stated that it was disproportionate to base any professional view on the contact session of 19 September 2006 as this took place after a three week gap of contact as the Social Worker was on holiday. Mrs Devine replied that she felt the Trust has come to a balanced judgment. It is not simply a matter of looking at what the parents can do, but also what they cannot do that has the potential to harm the children.

Guardian ad litem

The Guardian does not accept that both children appear to enjoy meeting up with their parents, especially K [6.16]. The Guardian observed contact on 31 August 2006 for purpose of this application. A difficulty arose when K wanted P to bring him into an adjoining room where K's carer was sitting. P refused and suggested that K wait for the contact worker to return and bring him. This is set out in greater detail at page 11 of the Guardian's report.

Paragraph 8.7 of the Guardian's report recited her understanding of the timing of the contact application.

At 8.9 the Guardian refers to the latest LAC on 17 July 2006 when a decision was made that 'once per month contact to be proposed from freeing until adoption'.

The Guardian also records concerns, namely at 9.25 P told K that 'everyone was trying to stop their (K&S') contact with their parents'. Apparently K was told by P to keep this a secret. This clearly demonstrates that P does not accept the Care Plan. There is much evidence that M also does not accept the Care Plan.

The Guardian, at 10.5 and 10.6 highlights the importance for K and S to achieve security and stability throughout their childhood and to develop healthy primary attachment patterns with their new carers. This in essence is the aim of their Care Plan, and any contact arrangement should support this goal.

The Guardian does note that contact appears to be an enjoyable experience for each child. However of late K presents as more unsettled after contact and can be very sulky/aggressive than during the week when there is no contact.

The Guardian ad litem stresses the importance of the contact reduction being properly planned and phased. She stated in evidence that K will need an awful lot of explanation why contact should be reduced.

The Guardian ad litem was sceptical of parties who change their evidence at the door of the Court. This was in relation to P availing of adoption counselling despite what he has said to the Trust, and similar by M. The Guardian supported the parents availing of adoption counselling, and said that this is likely to trigger a lot of issues for each parent.

In conclusion to the Guardian ad litem stated that contact was secondary to the Care Plan. Contact must support the aim of the Care Plan, and help the children achieve their primary care attachment with their permanent carers.

The Guardian ad litem suggested that the parent's attitudes towards managing contact has changed since the children moved to their permanent placement. P is sadder at the end of contact. The Guardian feels that the transition period is over, and the children are now involved in the early stages of attaching to their permanent placements. She said that this period is crucial for the success of the children's placement.

The Respondents

The Respondents did not give oral evidence.

Submissions

Closing submissions were given by Counsel on 27 September 2006. The Trust is adamant that the frequency of fortnightly contact is impeding the process of the children settling into their new placement. The Trust refers to page 94 and 96 of the main bundle, and extracts from Sally Wassell's report date 15 September 2005, and concerns in particular if these parents do not support the care plan, which their parents do not. The Trust also referred to the two pieces of literature provided by Mrs Devine when in the witness box.

Counsel for P reiterated the necessity to afford P the opportunity to engage an expert, and suggested that Mrs Devine's evidence was 'suppositive' rather than evidential in respect of the impact of the reduction upon these children.

Reference was made to Gillen J's Appeal Judgment of 25 September 2005; that he might form a different view during the Article 53 hearing, as to whether or not an expert is necessary.

Ms Anyadike-Danes BL stated that it was wrong to introduce the reduction, with the permission of the Court, and then seek professional guidance to assist with implementing the Order; rather, guidance should be sought before seeking an order to reduce contact. The court must be slow to reduce in the absence of any expert evidence.

Decision

My decision in respect of the Trust's Article 53(2) application was given orally on 16 November 2006.

I reached my decision not to allow the Trust authority to further reduce contact at this time after a great deal of consideration of the evidence specific to this case at this time, to include:-

[35] As stated above, the applications were not filed at an early stage, and as time moved on, by the time the applications were filed, dates were already scheduled for hearing the Article 53(2) application and the freeing applications. Leave was refused on 22 September 2006 and this was the subject of an appeal heard by Gillen J's on the morning of 25 September 2006. The Article 53(2) hearing provided for hearing as scheduled that afternoon, and concluded on 27 September 2006.