High Court of Justice in Northern Ireland Family Division Decisions

E and M initially resided in the same foster placement but in 2002 the shared placement broke down and E was placed separately.

M has been diagnosed as suffering from Aspergers Syndrome, but is not in receipt of medication. He attends mainstream primary school and is now in P5. He has been under the care of Dr Christine Lavery. MS is concerned that he has not received information from the Trust regarding M's condition and that the condition may have implications for contact. MS stated that he was only made aware that his son suffered from Aspergers Syndrome when Sally Wassell, expert witness, was observing contact on 13 July 2006, and she suggested to MS that he should not seek to hug or lift M to offer him comfort or affection. The Trust's C1 application filed on 2 August 2005 refers to each child's health.

When Mrs Lesley Anne Parks, Senior Practitioner gave her evidence she indicated that in early 2005 – after some lengthy assessments – M was first diagnosed with Aspergers Syndrome, and that she had advised MS of this during a prison vision in February 2005.

Week 1: M and E to have contact with their mother (I McA), activity based for two hours duration though this is flexible depending upon the activity. Contact will be supervised or supported by or on behalf of the Trust. No contact with MS;

Week 2: M and E to have contact with MS, activity based for two hours duration though this is flexible depending upon the activity. Contact will be supervised or supported by or on behalf of the Trust. No contact with I McA.

Week 3: E to have contact with I McA, activity based for two hours duration though this is flexible depending upon the activity. Contact will be supervised or supported by or on behalf of the Trust. No contact with MS;

Week 4: M to have contact with I McA, activity based for two hours duration though this is flexible depending upon the activity. Contact will be supervised or supported by or on behalf of the Trust. No contact with MS.

Week 5: E to have contact with MS, activity based for two hours duration though this is flexible depending upon the activity. Contact will be supervised or supported by or on behalf of the Trust. No contact with I McA.

The mother obtained a report from Sally Wassell, Consultant and Trainor in Child Care; the Trust asked this expert additional questions in respect of contact between the children and their father. This report is dated 15 September 2006. The mother filed an Affidavit sworn on 7 October 2005 and a Statement dated 6 October 2006; the father filed a Statement dated 30 October 2006. The Guardian ad litem filed a report dated 2 November 2006. I do not propose to reiterate the written evidence.

It is hoped that E will be placed in a specialist foster placement in January 2007, following assessment of prospective specialist foster carers to meet E's needs. The Trust stressed the importance of E being afforded every support with transition to her new proposed long term placement so that she may have the best possible opportunity to settle and make secure attachments in the placement. Contact arrangements for E will have to be reviewed in light of this anticipated move.

Sally Wassell was asked about her interview with E, who initially indicated to the Trust that she wished for the current contact arrangements to remain unchanged. Subsequently E expressed a different view, by indicating acceptance to the Trust's proposed reduction and change of arrangements. Sally Wassell indicated her difficulties with ascertaining E's true wishes and feelings in one interview, when E does not know her, and felt that E's views expressed to both the Social Worker and the Guardian ad litem who she knows, would more accurately reflect her views. Also E is a young person who has profound problems; therefore Sally Wassell is guarded about accepting what E immediately stated to her. Sally Wassell felt that E needs a process of discussion. Sally Wassell said that E's expressed wish may not reflect her needs; Sally Wassell accepts that E has a strong attachment to her father – strong in some sense, but she could not rely on her father for a fundamental sense of security.

Sally Wassell agreed with the proposed change of venue for contact between E and her father. She also stated in her oral evidence that she felt that this contact should be supervised, especially as MS does not accept that the placements for the children are designed to be permanent placements away from 'home'. Sally Wassell felt that contact, albeit supervised, occurring outside Belfast Family Centre, could be on a more relaxed basis.

- Certain aspects of MS's interaction with M can give rise to concern staff are currently available in the Family Centre should any difficulty arise during contact. Therefore if contact is to take place outside of the Family Centre, it should be supervised.

- Also, MS was domineering of M at least twice during Sally Wassell's observations of contact.

- Further, MS can avail of advice and support in respect of contact, which he says he would like to receive, if a supervisor is in attendance.

"• The quality of contact between the children and their father overall appears to vary significantly

Whereas, on occasion, contact can go well, on other occasions there is marked conflict between M and his father and this interferes with the potential benefits which might accrue to both children.

At times, not only M, but also E has been distressed by the negative aspects of father's interaction with M, and also by his hostility towards mother and the contact centre staff.

M's allegations about negative treatment from his father and his fear of him would suggest that contact is not currently reliably in M's best interests.

For example, in the past when there has been conflict between father and son, M has returned to his placement and soiled himself and demonstrated other signs of acute anxiety. "

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"• M's relationship with his father, however, would appear to be much

more clearly ambivalent.

This is far from a secure attachment relationship in which M demonstrates, avoidance and anxiety, particularly in relation to how contact will proceed on each occasion.

He was able to indicate to me that he was fearful and anxious of his father's reaction to him and particularly nervous of criticism and blame by MS."

Further in respect of E, Ms Wassell commented:

"• Although E demonstrates a strong loyalty to her father, I would not assess this relationship as a secure attachment relationship.

E would appear to have largely insecure patterns of attachment to adults, demonstrating highly indiscriminate attachment behaviour in her current and previous placements.

She was worryingly highly avoidant of closeness and intimacy in previous foster placements and her interest in seeing her family members would appear to be driven as much by a sense of family loyalty and search for identity, as by a close secure attachment link.

This does not deny the importance of the significance of E's relationship with her father and her potential to benefit from his continuing interests, affection and concern."

Sally Wassell felt that frequency of contact was not as important as quality of contact, particularly when the child is in a permanent placement. Timing and frequency need to meet the plan to support the child in the permanent foster placement.

Sally Wassell expressed her great concern that MS still does not accept that the children's care plans are permanency away from home, five years after the plans for permanency away from the family home were approved by the High Court.

Sally Wassell described the type of work which she felt MS must undertake and successfully complete before he may succeed in having contact increased. She felt he must co-operate and collaborate in in-depth discussions with Social Services, to include why M's condition in part exhibits itself in terms of his needs in respect of contact. MS must develop strategies for dealing with M's behaviours, especially his physical contact with M. Thought must be given to ways by which MS can demonstrate his trust and affection for M and E during contact sessions. MS must make himself available to do this work with the Trust, and also to consider his attitude to Social Services. Sally Wassell recounted evidence of MS being disdainful in his attitude to the Trust, and his disregard of the Trust's ability to set any limits on him. He is particularly unhappy with the work at the Family Centre, and he regards Social Services as interfering with his right to contact. Sally Wassell felt he has a very, very long way to go.

Sally Wassell said that some contact sessions can be very positive, and on other occasions contact is affected by conflict. M is an anxious child. He worries in advance of contact with his father least the contact session will be difficult. Despite these possible difficulties, M reports that he still wishes to have contact with his father provided it is supervised. This child needs predictability.

Sally Wassell regards telephone contact as a form of direct contact, not as indirect contact; and it is more difficult to supervise. Telephone contact between E and her father can give this child confusing messages if her father is adamant to seek residence, and is not supporting E in her permanent placement. Sally Wassell suggested it would be helpful for the children to receive occasional cards, not just on birthdays and at Christmas, so long as such indirect contact does not affect the children's placements and securities.

Mrs Parks stated that when she met MS in Maghaberry Prison on 2 February 2005 his issues then related to contact; he stated at that time that he wished to have separate contacted from I McA and he wished to have this contact at his home. A change of venue was discussed namely from Thorndale to Belfast Family Centre – the former supervised contact, whereas the latter monitored contact. Mrs Parks described an incident which took place during contact on 21 April 2005 when things became quite heated in the children's presence. E then decided to remain with her mother for contact session, whereas M proceeded with the contact session with his father and grandfather. When M returned from this contact session he was very upset and 'white as a ghost'. He described to his respite carer his concern that he thought his father was going to take him away. M then said he did not want to have contact with MS on his own, unless E or I McA were also present.

M has told Social Services that he wishes to have his contact with his father reduced.

Mrs Parks advised, when asked, that there would be sibling contact in addition to the proposals for contact with each parent.

MS advised the Court of his love for his two children. MS referred to lack of information being provided to him by the Trust in respect of M's 'disease', despite his requests. He stated that he made a request for information in July 2006. In April 2006 he asked if M could have contact with his sister. He explained the importance for him of working in partnership with the Trust, and that this must be 'a two way street'. MS said he had done his best to work with the Trust, and he described his frustrations in this regard. He claimed that it was Sally Wassell who first informed him of M's condition when he went to lift M during the observed contact session.

MS was asked about his plans to ask the Trust to reassess him; he replied that after Christmas, in 2007, he would 'get the ball rolling'.

When asked about his views of the Trust's proposal to reduce contact, he recalled how, five years ago he went to Court and got contact increased from fortnightly to once per week. He also said he did not like the area where contact presently takes place, thus he does not go out to the local shop with the children during contact. MS said that M changes his mind about his wishes in respect of frequency of contact.

MS was asked if he encounters difficulties during his contact with M; he acknowledged that he did, and that he awaits help from the Trust. MS said he has good contact with E, and that she phones him once per week, sometimes twice per week. Sometimes MS phones her.

MS states that he has never hampered any placement. He said that he wishes his children to be happy.

MS does not feel that a reduction of contact at the moment would harm the children in any way. He feels, having heard comments made by Dr Wilson, that as E suffers from ADHD she needs stability in her life, and routine.

MS was asked for his response to the Trust's proposition that M is in fear of him, and that M did not wish to have contact with just MS present. In response MS said he did not know anything about Aspergers.

MS was asked about his methods of disciplining the children, and M's comments that his father takes more sweets off him, to discipline him, than he takes off E. MS responded that E had ADHD, therefore she is 'more naughty' and he therefore has to talk more to E.

MS was asked about M's wish expressed to the Guardian ad litem, namely not to have as much contact with his father. MS stated that M will say different things every day, and he queried if this might be due to M suffering from Aspergers Syndrome. MS was asked about his proposed timeframe for seeking to be re-assessed, to which he responded, 'at earliest after Christmas'. He acknowledged that he would have to do work with Social Services. MS said he would not share his wish to engage in this work with the children, as that would only be 'building them up to pull the wool from under them'.

When asked about M's views, the Guardian commented that there have been three different assessments regarding the appropriate level of contact – by the Trust, by Sally Wassell, and by the Guardian ad litem. She does not feel M has changed his mind regarding his expressed view of monthly contact with his father. The Guardian ad litem has heard M state that he wishes to have someone present when he has contact with his father. Further, the Guardian has spoken to M's carers about his reactions after contact, and prior to contact. M said he wanted to see his mother more. The Guardian felt that MS needs to understand about Aspergers Syndrome, and there then needs to be an assessment to consider if such knowledge results in an improvement in the quality of contact.

The Guardian felt that E is more settled now than last year, and that at paragraph 5.39 of her report she recommended that contact with E must be reviewed following her move to her new foster placement, in accordance with LAC regulations and timescales. The Guardian was asked what would happen if E's placement fails, or if she does not attach to her new carers. In response the Guardian said that with support from E's parents, she could settle, and she needs to settle. The Guardian ad litem feels that E accepts the current contact arrangement, and the Trust's proposed arrangements. The Guardian ad litem stressed the importance of the quality of contact, and that E needs permanency and security in her living arrangements.

The Guardian ad litem felt that M is put under stain by the present contact sessions. She confirmed she had not observed MS physically chastise M. The Guardian ad litem explained M's note to the Court Appendix I of her Report to mean that he wants to see more of his mother than of his father or E. Appendix II means that M perceives that his father and E hurt and annoy him. The Guardian ad litem did observe E hitting M.

"given the current level of contact, the children are exposed to the negative aspect of contact on a weekly basis. This serves to undermine and jeopardise any sense of stability and security, which the children may experience, and compromises their ability to settle and form attachments within their placement. This expressly contradicts the purpose of contact and compromises the paramountcy of the children".

At page 4 of Mrs Parks final report she states that:

"given the level of conflict and unpredictability associated with contact the children are negatively influenced by contact. The current structure of weekly contact does not afford M and E the opportunity to settle within their placements as they can both experience a 'build up' and 'release' prior to and following contact."

At page 5 of that report Mrs Parks comments in respect of current contact:

"There has been a continued inconsistency in the quality of contact. Difficulties during contact visits are more prevalent between M and MS, whilst there have been some periods of appropriate adult/child interaction with the parents engaging the children in play, this has been through the direction or encouragement by staff. However on occasions M has felt threatened by his father.

On 27^th October 2005, M advised his carer that he had been hit on the back of his head by his father, as MS had blamed him for throwing a stone whilst in the playground of the contact centre. E had advised Children's House that on the same occasion she was blamed for throwing stones and was told by her father not to come to contact the following week.

Mrs Parks attempted to address this incident with MS who denied he hit M."

M reported a further incident on 6 April 2006 of his father bending his fingers back during play.

Decision

(a)       Week 1            M and E shall have contact with the I McA activity based for two hours duration, though flexible depending upon the activity; supervised or supported by or on behalf of the Trust as is deemed necessary;

Week 2            M and E shall have contact with MS; activity based for two hours duration, though flexible depending upon the activity; supervised or supported by or on behalf of the Trust as is deemed necessary;

Week 3            E shall have contact with I McA; activity based for two hours duration, though flexible depending upon the activity; supervised or supported by or on behalf of the Trust as is deemed necessary;

Week 4            M shall have contact with I McA; activity based for two hours duration, though flexible depending upon the activity; supervised or supported by or on behalf of the Trust as is deemed necessary;

Week 5            E shall have contact with MS; activity based for two hours duration, though flexible depending upon the activity; supervised or supported by or on behalf of the Trust as is deemed necessary;

In addition, E shall have one telephone contact per week with MS, for up to 10 minutes in duration, to be monitored by or on behalf of the Trust; day and time to be arranged by the Trust.

Statutory Obligations

"Where a child is in the care of an authority, the authority shall (subject to the provisions of this Article) allow the child reasonable contact with –

(a) his parents…"

This highlights the Trust's statutory and positive obligation to permit reasonable contact between a child who is in the care of the Trust and his parents (and others).

Further, I am satisfied that the contact arrangements accord with the UN Convention on the Rights of a Child (UNCRC), in particular:

Article 3 - I am satisfied that the Trust's decision regarding reduction of contact has been taken with the children's best interests having been considered.

Article 9 – the contact arrangements proposed by the Trust enable each child to maintain personal relations and direct contact with both parents on a regular basis, in accordance with the best interests of each child.

Article 12 - M was afforded his opportunity to express his views to the Court via the Trust and in particular via the Guardian ad litem. M's written comments illustrating his thoughts regarding contact with his sister, birth mother and father. The Guardian facilitated and translated M's written thoughts, which were very helpful. E was given the opportunity to speak to me in person, which she availed of, at the end of the proceedings when I had given my decision. E attended Court after school with her residential Social Worker, her key Social Worker and the Guardian ad litem. No lawyers nor parents were present. In addition, E obtained support throughout the proceedings via Social Services, and the Guardian ad litem.

Case Law

In Re B (Minors) (Care: Contact: Local Authority's Plans) (1993) 1 FLR 543, Butler-Sloss LLJ (as she then was) commented:

"….the issue of contact often depends on whether contact would frustrate long-term plans for the child in a substitute home…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, 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."

Delay

The First Respondent's application, dated 18 October 2005, to seek leave to engage an expert, was filed on 26 October 2005; the court had ordered on 16 September 2005 that any application for an expert witness must be filed on or before 7 October 2005. The presentation of the estimate of this expert's fees to the Legal Services Commission did not take place until after the Court had granted leave on 16 November 2005 pursuant to Rules 4.24 and 4.19 of the Family Proceedings Rules (NI) 1996. The initial expert was to report by 27 January 2006. The Trust subsequently sought leave to join in the appointment of the expert and to ask questions in respect of the father's contact with the children.

The expert's report became available on 20 September 2006, 8 months

after the initial date directed for the expert's report to be filed.

Article 179(14)

Conclusion