H (Children), Re [2005] EWCA Civ 318

Case No B4/2004/1931[2005] EWCA Civ 318
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PORTSMOUTH COUNTY COURT
(HIS HONOUR JUDGE SHAWCROSS)
Venue Royal Courts of JusticeDate Wednesday, 2 February 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE THORPE
LORD JUSTICE POTTER
LORD JUSTICE SEDLEY
H (CHILDREN)
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MISS SARAH EARLEY (instructed by Legal Practice, Hampshire County Council) appeared on behalf of the Appellant
MR JONATHAN SAMPSON (instructed by Child Law Partnership) appeared on behalf of the Respondent Mother
MR PETER HORROCKS (instructed by Child Law Partnership) appeared on behalf of the Guardian
J U D G M E N T
Wednesday, 2 February 2005
Between
Respondent MotherRespondent

LORD JUSTICE THORPE:

Miss

[1]Earley, in a most able and persuasive submission, challenges the order of His Honour Judge Shawcross, sitting in the Portsmouth County Court, refusing the local authority's application for an order under section 34(4) terminating contact between the parents and the children. The judge had to consider the future of two children - Celine, who is 5; and Steven, who is 3. There was an issue as to their future care and management, the parents contending that they were acceptable long-term carers, despite a long history which included the making of a care order in relation to Celine. The parents sought the discharge of that order and the local authority sought an order in respect of the younger child.[2]It was a case with a very considerable history, which the judge considered carefully over the course of the first 16 pages of his judgment. He then turned to consider the disposal in the light of his findings as to past events. He explained over the following 8 pages of his judgment why it was that both children had to be committed to care and to a care plan which provided for their adoption. Only at the end of his judgment did he come to consider the application for a section 34(4) order.[3]At the outset he identified what was the basis of the local authority's application. It was not a case in which they were saying that contact should terminate forthwith, or indeed within the foreseeable future. It was not a case in which it was said that parental contact should cease absolutely once an adoptive family had been identified and the process of introduction and placement commenced. The judge was quite plain that this was a case in which there should be post-adoption contact to the parents; so he identified the local authority's intended use of the section 34(4) order in these terms:
"Why do they want it? They say that as these children approach adoption it is necessary to enable them to move to the new placement to prevent them effectively seeing their parents."
So the local authority sought this powerful order for the relatively restricted purpose of inserting a suspension into what was foreseen to be a long-term continuing relationship between parents and children.[4]The judge refused them their order for a number of clearly stated reasons. The first was that there had been no adopters identified. He said:
"It seems to me that we are some way off adoption, if indeed we ever get there"
. His second consideration was that, as I have already stated, this was a case where the expert evidence supported contact to the parents as not detrimental to the interests of the children in the long-term. This therefore was not a case for closed adoption. The third consideration was that these were parents who were not predictably disruptive, either deliberately or even subconsciously, of a future adoptive placement. Fourthly, the judge made the point that, whilst the local authority's responsible use of the power was not in doubt so long as the current social work team were in charge, he could not have the same confidence once the responsibility moved to the permanence team, who would be responsible for implementing the introduction and placement. Finally, the judge made the attractive point that were he to make a section 34(4) order it would be sending out the wrong signals to all presently engaged with the case and also to prospective future adopters and that was something that would be contrary to the interests of the children.[5]In passing, the judge referred to Re G, which Miss Earley in the course of her submissions has said provided no foundation at all for the decision ultimately taken by the judge.[6]We have this morning heard from Mr Horrocks, for the guardian, who has drawn attention to the line of authority that seems to be nearest to determining any principle for the present appeal. The case of Re L [1996] 1 FLR 116 was primarily concerned with standard of proof in sex abuse cases, but towards the end of her judgment Butler Sloss LJ (as she then was), having cited a passage in the judgment below, said:
"The order giving leave to terminate contact was contrary to the local authority's present intentions and to the indications made by the judge as to the possibility of rehabilitation. Section 34(1) requires a local authority to allow the child in care reasonable contact with his parents unless by s 34(4) the court authorises termination of such contact. A s 34(4) order in our view is appropriate where there is no likelihood of rehabilitation and the child is, for instance, to be placed for adoption or with foster parents without continuing contact with the natural family. In the context of this case it was surprising that a s 34(4) order should be made and to do so to save a further application to the court if the circumstances should change had the effect of handing over to the local authority the residual responsibility still vested in the court. It was premature to make an order which was not to be implemented in the foreseeable future."
That principle was reiterated in the later case of Re T [1997] 1 FLR 517 and more recently in Re S (Care: ParentalContact) [2004] EWCA Civ 1397.[7]Mr Horrocks concludes his submissions by expressing the guardian's neutrality, but by emphasising that there have been considerable changes of circumstance, all of which seem to militate against a section 34(4) order. Therefore, he says, any reconsideration should be in the county court, either on remission or on a fresh application by the local authority.[8]Mr Jonathan Sampson, who represented the parents below, has pro bono provided the court with a very full and helpful skeleton. Additionally, he has appeared today to support that skeleton, if necessary. He is in that situation since the parents have not collaborated with his former instructing solicitors in seeking public funding for this appeal. I would like to record Mr Sampson's valuable contribution and to pay tribute to his responsibility in approaching the court and offering assistance.[9]What, then, of Miss Earley's submissions? She says that the judge fell into fundamental error because he did not sufficiently recognise that to refuse them the order sought was to jeopardise an adoptive placement, or to make it more difficult for the local authority to achieve, or to delay its achievement. For, she said, having identified an adoptive family, the local authority would be obliged to return to the court to seek the section 34(4) order all over again with consequential litigation delay which would impact upon a successful placement.[10]It certainly cannot be said that the judge ignored that factor. He said at the foot of page 26 of his judgment:
"I know the Local Authority may find it easier, and will find it easier, to find adopters if they have a s 34(4) order. I am sorry about that. Nevertheless, it is something I am bound to accept."
[11]In the end, it seems to me that this was an impeccable judgment, clearly explaining the exercise of a judicial discretion. The function of the judge in upholding the Parliamentary intention of section 34 and in granting section 34(4) orders restrictively and stringently is an important one. This case is not directly covered by the three authorities that I have cited, for the local authority were able to go beyond simply saying that they might need the order one day in order to achieve placement. They were saying specifically that they would certainly need it in order to ensure the safe passage from foster care to adoption.[12]However, in my judgment, that fine variation on the theme does not carry this case outside the principles to be extracted from the three cases cited. The judge was effectively applying those principles impeccably in questioning the appropriateness of such a powerful order for such an uncertain and limited future use. Miss Earley has said that, rather than dismissing the application, he might have adjourned it. Alternatively she says, ingeniously, that he might have granted the order but written in protection for the parents by applying conditions under section 34(7). That seems to me no criticism of the judge, nor any basis for this court to interfere, given that he was not invited to take either of those courses below. Miss Earley said she did not have much opportunity because she was not forewarned as to what was to come. However I do not think that that is a complete answer. The local authority might well have perceived for themselves, as Miss Earley now perceives, the opportunity to yolk subsections (4) and (7) in order to achieve the bespoke result that the local authority essentially strove for.[13]For all those reasons I am not persuaded, despite Miss Earley's eloquence, that the judge in any way misdirected himself or failed in his execution of the discretionary balance. I would dismiss the appeal.

LORD JUSTICE POTTER: I agree.

LORD JUSTICE SEDLEY: Lord Atkin once remarked that justice and convenience are frequently not on speaking terms. Judge Shawcross was plainly alive to this. He was rightly concerned that leaving contact in the hands of the local authority might allow the best interests of the children to take second place to the practicalities of finding adopters with the minimum of impediment.

[16]The grounds on which Miss Earley persuaded Ward LJ, contrary to his initial view, and Rix LJ to grant permission to appeal candidly placed the local authority's practical difficulties in the foreground.[17]In my view, although arguable, this is not an acceptable approach. As this court made clear in Re B Minors [1993] 1 FLR 543 at 551 the practical convenience of the local authority matters, but only to the extent that to impede it would be contrary to the best interests of the children. On Judge Shawcross's findings this was not such a case. It was a case in which the children needed as much continued contact with their natural parents as was compatible with the long-term plan for them. The section 34(4) order would not have prevented this, but it would have transferred the discretion to the local authority. It is not surprising that the judge preferred to ensure that the lifeline of parental contact should not for the time being be placed at risk of severance.[18]I too would dismiss the appeal. (Appellant's publicly-funded costs to be the subject of assessment; no reporting restrictions).

Cited in 1 later judgment