Homefirst Community Health
& Social Services Trust v SA [2001] NIFam 12 (11 May 2001)
Neutral
Citation no. [2001] NIFam 12
Ref:
HIGF3422
Judgment:
approved by the Court for handing down
Delivered:
11.05.2001
(subject to
editorial corrections)
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
FAMILY DIVISION
________
No. 2001/65
HOMEFIRST COMMUNITY HEALTH & SOCIAL SERVICES TRUST
Applicant;
-and-
SA
Respondent.
_______
HIGGINS J
This is an appeal from a decision of His Honour Judge Burgess, Recorder of
Londonderry, whereby, on 2 March 2001, he made interim care orders in respect
of the four children of SA (their mother), the appellant. The children
are D who was born on 14 May 1990 and is now aged 11 years; A was born on 10
May 1991 and is now aged 10 years; J was born on 18 December 1993 and is now
aged 7½ years and C was born on 24 July 1995 and is now aged 5¾ years.
The family has been known as Social Services for some time. The father or
fathers of the children have not been identified. The mother has a long
standing and debilitating alcohol problem. In 1998 she commenced a
relationship with a man named S. This was a volatile relationship with
allegations of domestic violence in the presence of the children. In June
1999 the mother requested that the children be accommodated elsewhere. D
and A went to live with their great-aunt and J and C to foster carers.
The reasons for this were the mother's inability to cope due to her alcohol
problem and an overdose of prescription drugs which occurred on 16 June and
which necessitated her admittance to hospital on 1 July. Later J and C
returned to her care. On 6 July the mother was again unable to care for J
and C due to her consumption of alcohol. She stated she had taken tablets
and was threatening self harm. She was admitted to the Mid Ulster
Hospital and then transferred to Holywell Psychiatric Hospital. She was
discharged on 11 July but again consumed alcohol. On 14 July she insisted
that the children be looked after by the Trust. Arrangements were made
for their immediate care and on 24 July J and C were placed with foster carers
with the mother's agreement. They have been in foster care since that
time. D and A remain with their great-aunt. The mother has made no
attempt to remove them from their current placements. There have been a
few minor incidents during contact when the mother had consumed alcohol.
She has been advised to deal with her alcohol problem and to attend the
Community Addiction Team as well as to end her relationship with S. The
relationship has not ended, indeed she is now expecting his child but there is
some evidence that she is attempting to deal with her alcohol problem.
She was offered an assessment at Cookstown Family Centre which was not taken
up. She has now agreed to undergo an assessment of 8-10 weeks in Omagh,
where she now resides, though no commencement date has been set. Some of
the children have exhibited signs of sexualised behaviour but the reasons, for
this are unknown. At the time when the children became voluntarily
accommodated they were aged 9 years, 8 years, 5½ years and 4 years respectively
and were in need of the basic love, care and attention that children of that
age require. At a LAC review on 5 April 2000 it was agreed that the Trust
would apply for care orders in respect of all four children. It was also
recommended that contact with their mothers should be restricted to Cookstown
Family Centre. No action was taken on foot of this decision or
recommendation. On 15 June 2000 the mother informed the social worker in
charge of the case that she was arranging an appointment with her solicitor, in
order to arrange the adoption of her children. At a LAC review on 5 July
2000 it was decided that the Trust would apply for care orders and that the
care plan would be to seek a permanent arrangement for the care of the
children, namely their adoption. Nothing further happened until an
application dated 8 December 2000 was filed at the Family Proceedings Court
seeking care orders in respect of all four children. The supplement to
the application of the same date recites as the grounds for the application the
wording of Article 50 of the Children (Northern Ireland) Order 1995. The
application recites the reasons for applying for care orders at that time as,
the failure of the mother to honour her agreement to work in partnership with
the Trust. There is also a reference to her alcohol problem and request
that the children be accommodated. The C1 application for a care order
should set out clearly and concisely the harm which it is alleged a child has
suffered or is likely to suffer. The importance of the initial
application and a concise statement of the reasons for the application cannot
be underestimated. A concise statement of the reasons helps to focus
attention on the real issues in the case at an early stage and will inform the
court and the parties as to the directions necessary and the course the case
should take. An incomplete or inaccurate statement of the reasons only
creates confusion as to the true nature of the case and is likely to create
difficulties at a later stage. An accurate and concise summary of the
reasons why a child should be the subject of a care order is so important, that
it should be treated as a pleading in the case. The form C1 provides
little space for the reasons to be set out. I see no reason why, if
necessary the reasons should not be set out on a separate sheet and attached to
the C1 form. The formula "see attached social worker report"
should not be used. What the court wishes and the parties require, is the
precise case being made at that time in concise form.
The application for care orders was listed for hearing at the Family
Proceedings Court on 11 January 2001. On that date it was adjourned to 26
January 2001. The Trust then filed an application requesting that the case be
transferred to the Family Care Centre together with a written submission
setting out why interim care orders in respect of all four children were
sought. This submission was to the effect that before an application to
free the children for adoption under Article 18 of the Order 1987 (freeing
without parental agreement) could be made, the children required to be the
subject of a care or interim care order. A direction hearing was fixed
for 22 February 2001 at which the Recorder considered whether interim care
orders should be made. He reserved his decision and give his ruling in a
written judgment on 20 March 2001. He was satisfied that there were
reasonable grounds for believing that the threshold conditions in Article 50
were met. Mr McGuigan BL who appeared in the Family Care Centre, assured
the Recorder that adoption was not the only plan for the children. There
remained the possibility of an assessment of the mother and the children and
the Trust had not yet secured the mother's commitment to such assessment.
The Recorder decided to make the interim care orders sought.
The mother appeals against that decision and the grounds of appeal are –
"1.
The Court erred in fact and in law in finding that the provisions of Article
57(2) were satisfied;
2.
Further and in the alternative, in making the finding referred to at 1 above
the Court failed to set out its reasons with sufficient detail and clarity to
make clear the facts upon which it has relied and the matters which it has
taken into account in reaching its decision;
3.
Further and in the alternative, in deciding what, if any, Order should be made,
the Court failed to take any, or adequate account of the paramountcy principle,
the welfare checklist and the principle of non-intervention;
4.
Further and in the alternative, in deciding what, if any, Order should be made,
the court failed to take proper account of all relevant matters and reached a
final decision which was against the weight of the evidence and which was wrong
in all the circumstances of the case."
Article 166 of the Children (Northern Ireland) Order makes provisions for
appeals in Children Order cases.
"166.-(1)
Subject to any express provisions to the contrary made by or under this Order,
an appeal shall lie to the High Court against –
(a)
the making by a county court of any order under this Order; or
(b)
any refusal by a county court to make such an order,
as
if the decision had been made in the exercise of the jurisdiction conferred by
Part III of the County Courts (Northern Ireland) Order 1980 and the appeal were
brought under Article 60 of that Order."
Thus the hearing in the High Court, of an appeal from the county court to the
High Court, is to be treated in the same way as a civil appeal under Article 60
and Part III of the County Court (Northern Ireland) Order 1980. County Court
appeals are in practice a rehearing with the onus on the plaintiff or
applicant, who proceeds first. Thus Mr McGuigan on behalf of the Trust
opened the application for interim care orders and the mother and Guardian Ad
Litem responded. Appeals in family law proceedings will not always
require a full hearing with oral evidence. Whilst these appeals from the
county court are treated as having been brought under the County Court Order,
the procedure to be adopted may vary from case to case. Thus in some
cases a full hearing with oral evidence will be required, in others the matter
can proceed on the papers or a written judgment of the court below or both or a
mixture of them. It will be for the court, after hearing any submissions
made, to determine how the appeal should proceed. In this case the
parties were agreed that the appeal could proceed on the papers and the written
judgment.
Article 57(1) of the Children (Northern Ireland) Order 1995 makes provision for
the making of interim care orders when applications for care orders are
adjourned.
"57.-(1)
Where –
(a)
in any proceedings on an application for a care or a supervision order, the
proceedings are adjourned; or
(b)
the court gives a direction under Article 56(1),
the
court may make an interim care order or an interim supervision order with
respect to the child concerned.
(2)
A court shall not make an interim care order or interim supervision order under
this Article unless it is satisfied that there are reasonable grounds for
believing that the circumstances with respect to the child are as mentioned in
Article 50(2)."
Thus where care proceedings are adjourned the court may make an interim
court order or interim supervision order. It can only do so, if the test
set out in Article 57(2) is satisfied. If this test is satisfied the
court is not obliged to make interim care orders. Invariably it
does. Whether it does so or not will involve a consideration of the child's
circumstances, the welfare checklist in Article 3(3), the avoidance of delay
referred to in Article 3(2) and the no order principle set out in Article 3(5),
always remembering that the child's welfare shall be the court's paramount
consideration.
Before this court Mr McGuigan conceded that the only reason put forward for
interim care orders in this case, was to enable proceedings to be brought under
the Adoption Order. He expanded on the reasons put before the Recorder
and explained that before the proceedings under the Adoption Order could be
commenced, the four children required to be referred to the Adoption
Panel. Under Regulation 11 of the Adoption Agencies Regulations (NI) 1989
an Adoption Agency ie. a Trust can only make a decision whether adoption is the
best interests of a child after taking into account the recommendation of the
Adoption Panel on that issue. He further informed the court that the
Adoption Panel would only consider the case of a child, if that child was in
the care of the Trust under a full or interim care order. Thus the Trust
required interim care orders in order to refer the children to the Adoption
Panel for their recommendation.
Article 10 of the
Adoption Agency Regulations (Northern Ireland) 1989 states –
10.-(1)Subject
to paragraphs (2) and (3), an adoption panel shall consider the case of every
child, prospective adopter and proposed placement referred to it by the
adoption agency and shall make one or more of the recommendations to the
agency, as the case may be, as to –
(a)
whether adoption is in the best interests of a child and, if the panel
recommends that it is, whether an application under Article 17 or 18 (freeing
child for adoption with or without parental agreement) should be made to free
the child for adoption."
There is no requirement in the Regulations that the children be in the care of
the Trust prior to referral of the children to the Adoption Panel.
Mr McGuigan accepted this was so, but stated that the Adoption Panel have a
policy that they only consider children who are in the care of the Trust.
No documentation was available to support or justify this policy. If
there were, it would be contrary to the Adoption Agency Regulations, which
require the Adoption Panel to consider any child referred to it. I
invited Mr McGuigan to consider whether there were any issues relating to the
welfare of these children which required interim care orders to be in force at
this time or when the application was before the Recorder. He replied
with his usual candour that his instructions were that the only reason for
interim care orders was to place the children before the Adoption Panel.
At a later stage Mr McGuigan submitted that there may be an issue relating to
how capable the mother is of meeting the needs of the children – see Article
3(3)(f) of the Children Order.
These four children have now been accommodated since June/July 1999. No
attempt has been made to remove them and the mother appears content with their
present placements. Initially she did not co-operate with the Trust but
more recently has agreed to, it is said, because the interim care orders are in
force. The children have been in voluntary accommodation for nearly two
years. If rehabilitation with their mother is not a realistic option then
plans have to be made for their future and it is appropriate that the Trust do
so. Care proceedings have now been issued with that principle in mind,
and it might be said, not before time.
When care proceedings are issued and the court is considering whether to make a
care or supervision order the relevant date whether the child is suffering or
has suffered significant harm is usually the date of the application or
order. However where protective measures have been in force the relevant
date is the date on which the protective measures are put into effect.
Protective measures would include the voluntary accommodation of children under
Part IV of the Children Order. See Re M (a minor) (Care Order:
Threshold Condition) 1994 2 FLR 577 in which Lord Mackay said at page 583:
"There
is nothing in s 31(2) which in my opinion requires that the conditions to be
satisfied are disassociated from the time of the making of the application by
the local authority. I would conclude that the natural construction of
the conditions in s 31(2) is that where, at the time the application is to
be disposed of, there are in place arrangements for the protection of the child
by the local authority on an interim basis which protection has been continuously
in place for some time, the relevant date with respect to which the court must
be satisfied is the date at which the local authority initiated the procedure
for protection under the Act from which these arrangements followed. If
after a local authority had initiated protective arrangements the need for
these had terminated, because the child's welfare had been satisfactorily
provided for otherwise, in any subsequent proceedings, it would not be possible
to found jurisdiction on the situation at the time of initiation of these
arrangements. It is permissible only to look back from the date of
disposal to the date of initiation of protection as a result of which local
authority arrangements had been continuously in place thereafter to the date of
disposal."
Thus in this case the relevant date for consideration as to whether there are
reasonable grounds for believing that the children suffered or were likely to
suffer significant harm is June/July 1999. At that time their mother by
reason of her problems, was unable to provide the basic needs of her four
children and clearly there were reasonable grounds to believe that there was a
real possibility that, at the very least, their physical or mental health or
physical or emotional development might be impaired. Therefore the test
established in Article 57(2) is satisfied.
When care proceedings come before the court they can be heard immediately, if
ready to proceed. More often they are adjourned for a directions hearing
and the fixing of a date for trial. It is not essential that an interim
care order be made. Is one necessary in this case on the ground put
forward by the Trust. An interim care order is not a necessary
prerequisite before a referral of the children to the Adoption Panel can be
made. In those circumstances it would be wrong for a court to make an
interim care order on that basis or on the basis that the Trusts' social
workers believe interim care orders are required or that the Trust would prefer
to have interim care orders in place when the children are referred to the
Adoption Panel can be made. Therefore I decline to make interim care
orders on the main submission put forward by the Trust.
However, I do not consider that absolves the court, in the exercise of its
discretion, from considering whether the interests of the children require
interim care orders to be in force. These children have been settled in
alternative accommodation for quite some time. There is no evidence that they
are at any immediate risk. The Trust have made a decision about how they
perceive their future – in permanent placement elsewhere than with their
mother. An interim care order is not going to advance that situation
though the Trust, wrongly in my view, thought it might.
The effect of an interim care order is to order that the designated authority
receive the child into its care – see Article 52(1). By Article 53(3) the
designated shall have parental responsibility for the child and have the power,
where necessary to safeguard or promote the child's welfare, to determine the
extent to which the parent may meet his parental responsibility for the child –
see also Article 53(4). Article 6 defines parental responsibility as all
the rights, duties, powers, responsibilities and authority which by law a
parent of a child has in relation to the child and his property. I have
considered carefully whether there is some advantage to the children's welfare
to be gained, in the particular and unusual circumstances of this case, from
having interim care orders in force or any necessity for them. I can find
no such advantage or necessity nor has any been indicated to me. I
therefore decline to make interim care orders in respect of these four children.
The mother and the Guardian Ad Litem have expressed the view that the Trust's
plan for permanent arrangements are premature. That issue is for another
day.
Under Article 166(8) an appellate court may make such orders as may be
necessary to give effect to the determination of the appeal. Under
Article 166(9) the appellate court may also make such incidental or
consequential orders as appear to it to be just. The future of these four
children raises issues worthy of consideration in this court, particularly if
issues relating to freeing for adoption without parental agreement will
arise. I direct that this case remain in the High Court and be listed as
soon as possible before the Family Judge for directions. At any
directions hearing or on the application of the Trust, interim care orders may
be made, if the welfare circumstances of the children change in such a manner
so as to require them.
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
FAMILY DIVISION
________
No. 2001/65
HOMEFIRST COMMUNITY HEALTH & SOCIAL SERVICES TRUST
Applicant;
-and-
SA
Respondent.
_______
J U D G M E N T
O F
HIGGINS J
________
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