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 7 years and C was born on 24 July 1995 and is now aged 5 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, 5 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

 

 ________

 

http://www.bailii.org/nie/cases/NIHC/Fam/2001/12.html