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Ref: |
Master 42 |
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Judgment: approved by the
Court for handing down |
Delivered: |
14/12/06 |
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(subject to editorial
corrections)* |
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IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
FAMILY DIVISION
OFFICE OF CARE AND PROTECTION
IN THE MATTER OF E AND M (ARTICLE 53(2) APPLICATION BY
TRUST TO REDUCE CONTACT: CARE PLAN: LONG TERM FOSTER CARE)
Between
North & West Belfast Health & Social Services
Trust
Applicant
And
I McA & MS
Respondents
E, a child
and
M, a child
Respondent Children
Master Wells
[1]
In any report of this case I direct that there
should be no identification of the name of the children, the names of either
parent or any other matter that may lead to the identification of the family
who are the subject of this application.
[2]
This is an application brought by North and West
Belfast H&SS Trust (hereinafter called 'the Trust') to vary contact
pursuant to Article 53(2) of The Children (NI) Order 1995 (hereinafter called
'the Order'). The C1 application was filed on 2 August 2005.
[3]
E is aged 11 years 11 months and M is aged 10
years and 1 month. They were initially placed in care on 15 January 1998 and
were both made the subject of full Care Orders before Belfast Family
Proceedings Court on 2 March 1998. The Trust after assessment having decided
against reunification to birth parents, made application on 25 January 1999 to
seek orders to free the children for adoption. These applications were refused
by Higgins J on 2 February 2001 see judgment Ref: HIGF3274. At the conclusion
of this hearing the Judge made a Contact Order (Article 53) allowing the
parents to have contact with the children for a period of two hours once per
week. Consideration was to be given to the introduction of unsupervised
contact, particularly for the father (MS).
[4]
The Trust subsequently made an application to
vary the contact arrangements in respect of the father whilst he was in prison,
and on 18 June 2001 Higgins J varied the Contact Order, ordering that direct
contact between the children and their father be suspended whilst he was in
prison and that he should have 'indirect telephone contact' only, once per
week, each Friday between 2.30pm and 3.00pm.
[5]
The children have experienced significant
placement changes since they were initially placed in care the Guardian ad
litem's report states that E has experienced 8 foster placements along with a
number of respite placements, and is presently in a Children's Home awaiting a
specialist foster placement. The Guardian further reports that M has
experienced 8 foster placements and a number of respite placements. His current
carers have been assessed as permanent long term foster carers and for him it
is hoped that this placement shall sustain throughout his childhood.
E
and M initially resided in the same foster placement but in 2002 the shared
placement broke down and E was placed separately.
[6]
Each child has been assessed as having special
needs. E has been diagnosed as suffering from Attention Deficit Hyperactivity
Disorder (ADHD); she also has a Severe Attachment Disorder. E is under the care
of Dr Richard Wilson, Consultant Child and Adolescent Psychiatrist, and she is
in receipt of medication for her medical condition.
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.
[7]
The Trust is seeking an order to vary the Contact
Order made on 2 February 2001 to reduce the frequency of contact. The current
duration of contact is 1hr 30 mins per week between the children and their
parents together; E also has weekly phone contact with her father. The parents
have been separated for some considerable time. The Trust proposes to allow
each parent separate contact with the children due to hostilities which can
arise between the estranged parents during contact sessions. The Trust further
proposes to change the venue for contact, and to allow the contact to be
activity based, albeit loosely supervised. The Trust's proposal for direct
contact is on a 5 weekly cycle, as follows:
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.
[8]
The Trust, in its Core issues, cited 5 reasons
why contact should be reduced:
[9]
Further, the Trust reports indicate that contact
has been affected by parental acrimony during contact and in front of the
children. Also, MS has displayed non-engagement at contact by arriving late;
taking mobile phone calls during contact; not attending the shop with the
children and their mother during contact, and so missing a large portion of
contact time; concerns in respect of the father's chastisement of the children
during contact; the children's reaction to poor quality contact, and finally
the need for reassurance from their carers.
[10]
The mother ultimately consented to the Trust's
proposal, which it is supported by the Guardian ad litem, and Ms Sally Wassell,
expert witness. The father is consenting to contact taking place separately;
however he is objecting to any reduction of frequency of contact and in fact he
wishes to have contact frequency increased from one to two sessions per week
lasting one and a half hours per sessions
[11]
The Trust evidence in the case is contained
within three reports prepared by Mrs Lesley-Ann Parks (nee Dunlop) 12 August
2005; 2 September 2005 and 20 October 2006, together with a report prepared by
Mrs Sandra Beetson, Contact Services Manager dated 2 September 2005.
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.
[12]
The Care Plan for each child is permanency away
from home via long term foster care. The last assessment of MS was 2002/03. The
Trust has stated that contact needs to secure each child's care plan and
placement, and that the parents should support the children in their respective
placements.
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.
[13]
Ms Sally Wassell, expert witness, gave evidence
via video link. She stated that she did not think increased contact would give
a clear message to either child for E at this time of anticipated change, and
for MS, who needs clarity and consistency in his placement.
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.
[14] In
response to being asked why contact had to be supervised, Sally Wassell
commented:
- 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.
[15]
In Ms Wassell's reports she gives numerous other
reasons to justify why contact between M and MS should be supervised e.g. page
22
"
The quality of contact between the children and their father overall appears to
vary significantly
o
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.
o
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.
o
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.
o
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.
"
Page
23
"
M's relationship with his father, however, would appear to be much
more
clearly ambivalent.
o
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.
o
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.
o
E would appear to have
largely insecure patterns of attachment to adults, demonstrating highly
indiscriminate attachment behaviour in her current and previous placements.
o
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.
o
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."
[16]
Sally Wassell was asked about when she understood
MS had been informed of M having Aspergers Syndrome; Sally Wassell said that
Social Services advised her that MS was informed about M's condition when he
was in prison, and that there appeared from Social Services records to have
been difficulties with MS co-operating sufficiently with Social Services to
afford them the opportunity to discuss this medical issue with him in detail.
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.
[17]
Sally Wassell was asked about MS' intention to
seek custody (residence) within the next year; Sally Wassell replied that it
was very important for MS to promote E settling in a permanent placement,
especially as she already has attachment difficulties. E needs time to
establish a relationship with her proposed new permanent carers. In order to
consider rehabilitation to MS' care, he would need to undertake a great deal of
work. Sally Wassell did not think it would be fair of MS to hold E in limbo,
pending the outcome of such assessments. It is very important for contact to
reflect harmony with the child's care plan and placement. The frequency of
contact to support the children's placements should be at a lower level rather
than increased frequency.
[18]
Sally Wassell was referred to page 15 of Sandra
Beeston's report which referred to difficulties displayed by I McA in managing
the children during contact from time to time, and was asked if she was aware
of any similar difficulties with MS managing contact? In response, Sally
Wassell mentioned the contact session which took place on 21 April, and M's upset
following this contact centre. Also, MS's difficulties regarding the attendance
at the local shop with the children during contact sessions.
[19]
Sally Wassell was asked that if E did not form attachments
with her new carers' and contact with her father was reduced, would this not
leave her with no attachments? Sally Wassell replied that it was not a question
of attachment with father or with carers; rather E needs a relationship with
secure carers, who are skilled, capable carers. E needs to know her father
supports her new placement.
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.
[20]
Mrs Lesley-Anne Parks, Senior Practitioner was
asked why the Trust has not progressed reunification. Mrs Parks advised that at
a LAC Review on 19 February 2002 MS inquired about being re-assessed as the
children's carer. Mrs Parks explained that the Trust tried to make contact with
MS thereafter, and eventually spoke with him in June 2002. An assessment was
carried out by the Children's Resource Team; this finished in June 2003. The
outcome recommended that further work needed to be carried out to include a
further psychological assessment; a residential assessment, and an attachment
assessment. Mrs Parks advised that MS did not advance the work recommended by
the Children's Resource Team.
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.
[21]
Mrs Parks was asked what she had told MS about
M's medical condition. Mrs Parks advised that on 2 February 2005, during a
prison visit, she had explained to MS the advice given to the Trust by Dr
Christine Lavery, namely that persons who suffer from Aspergers Syndrome may
have social problems, and difficulty understanding situations or processing
information. Mrs Parks advised that at that time the Trust itself was still
learning how Aspergers affected M. He now has a mental health social worker,
appointed in July 2006. Mrs Parks said there is a waiting list for Child and
Adolescent Mental Health Services. So far, no work has been offered to the
parents to explain the implications of this condition for M, however
appointments have been made with them to discuss plans for explaining this
condition. M has now been referred to Dr Bothwell's clinic to consider his
behaviour. Mrs Parks acknowledged that MS has asked the Trust for information,
and she advised that the Trust does plan to talk to both parents regarding M's
condition.
[22]
Mrs Parks was asked about Dr Wilson attending E's
LAC Review on 19 October 2006; the Minutes of this Review are not yet
available. MS appears to understand that Dr Wilson, though he only attended the
Review for the short time, regarded E's time spent in her current placement as
her most stable. It is not clear if Dr Wilson is aware of the nature of the
Children's Home, namely to assist in the assessment of a child for purposes of
matching that child with a suitable specialist foster placement; the scheme is
organised by Barnardos and there is an upper age limit of 13 years for young
people in this specialist children's home.
[23]
Mrs Parks was asked about E's attitude to
frequency of contact with her father, and how she initially indicated that she
did not want contact to change. She then indicated her acceptance of the
Trust's proposals and she informed the Guardian ad litem that she thought the
proposals sounded 'ok'. Mrs Parks said that E does not like change, and that
she has indicated a number of family members who she would like to have contact
with.
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.
[24]
Mrs Beetson, Contact Services Manager was asked
about her assessment of both parents carried out in 2005. She indicated that at
the conclusion of this assessment whilst the quality of contact with I McA
improved, it did not improve with MS. Mrs Beetson commented that MS did not
avail of the opportunities during contact to go to the shop with the children
and I McA, therefore he missed out on up to 30 minutes contact per session with
the children. Mrs Beetson said that she never witnessed MS physically chastise
the children, though she said staff in the Centre only monitor contact, rather
than supervise it. She did state that MS does use verbal chastisement and
bribery.
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.
[25]
MS was asked about the plan of long term
placements for both children; he said he would prefer the children to be
rehabilitated. He stated that the only stable thing for E is her contact, and
where she is residing at the moment in the children's home.
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.
[26]
Counsel on behalf of the Trust asked MS about his
meeting in Antrim after 13 July 2006 to discuss M's condition. He was also
referred to the Trust's contact application dated 2 August 2005 which contains
details of each child's health. MS stated that he has not been to the library
or to a GP for information about Aspergers Syndrome and that he awaits
information from the Trust. He claims the Trust does have his address. MS did
not accept that the Trust has struggled to contact him or to reach him by
phone. He was asked about using his mobile phone during contact sessions; MS
said this happened three times. One of the calls received was from the
children's grandfather, and he gave the phone to the children to speak to their
grandfather. He claims to have made one outgoing call to ask about a taxi.
[27]
MS was asked for his response to the Social
Worker's evidence in respect of the impact upon the children of increasing
contact. MS referred to Dr Wilson's comment in respect of E, and that he had
intended for this to be mentioned in his Statement.
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'.
[28]
The Guardian ad litem, in her oral evidence to
the Court, was asked why she felt contact should be reduced. She replied that
the care plan was not rehabilitation to the birth parents. M is in a long term
foster care placement, and long term foster carers have been identified for E.
The level of contact must be linked to the children's care plans for long term
placements. Secondly, the children are aware of the Trust's application and the
Trust's proposals. The Guardian said that both children are broadly in
agreement with the Trust's proposal to reduce contact. The Guardian, thirdly,
reiterated what Social Services have stated, namely that increased contact
would be confusing for the children, and hinder them from settling in their
placements. The Guardian pointed out that MS has missed nine contact sessions
since he was last discharged from prison on or about April 2005. She felt that
his expectation that he will actually attend contact twice per week is
unrealistic.
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.
[29]
Mrs Parks, in her first report concludes that
contact must be seen as a positive experience for the child and not seen to
undermine the placement or destabilise the child's ability to attach to carers
other than his/her birth family. Mrs Parks further states:
"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
27th 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.
[30]
The Trust helpfully referred to a number of
published articles to justify its decision to seek an Order to reduce the
frequency of contact between the children and their parents, to include Slade A
2002: "A Guide to Best Practice in Supervised Child Contact", which
states that "In all contact applications, the child's welfare, rather than
the parents rights to see the child is the paramount consideration." Other
articles were referred to at the conclusion of the Trust's report dated 20
October 2006.
Decision
[31]
Having considered all matters I have allowed the
Trust's Article 53(2) application and ordered the Contact Order made on 2nd
February 2001 shall be varied in accordance with the Trust's application
namely, contact shall be arranged on a five weekly cycle as follows:
(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
[32]
The Court is mindful of the statutory obligations
contained within Article 53(1):
"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).
[33]
This accords with the Trust's further obligations
pursuant to Article 8 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms (ECHR); namely the right to respect for private
and family life, home and correspondence. I recognised and took into account
both parent's rights in this regard, and in particular each child's rights - in
the context of this family, and these children's respective care plans. I also
recognised that this right is qualified, and the Trust may only interfere with
the parents and the children's Article 8 rights if they have legal authority to
do so, the interference is necessary in a democratic society in order to
achieve one of the aims within that Article, and is proportionate to that aim.
I believe the Trust has given due regard to its obligations under both domestic
and international legislation, and has additionally and ultimately made decisions
regarding the children's contact with their birth parents which is in each
child's best interest at this time. The proposed contact regime is clear. The
children will understand it. It meets their needs and it accords with their
respective care plans.
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
[34]
I am satisfied that the reduction of contact and
the revised arrangements, whereby the children will now have separate contact
with their mother and their father, allows reasonable contact, within the
meaning described in Re P (Minors) (Contact with Children in Care) 1993 2 FLR
156. The proposed contact allows the parents and the children to enjoy a better
quality of contact, reflected in the arrangements for contact to be activity
based, with only modest supervision or support by the Trust as is deemed
necessary, to include the venue for contact on any particular occasion.
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
[35]
I am very concerned that this Article 53(2)
application has been in the Court arena for 15 months. The case had initially
been scheduled for hearing on 22 November 2005. There has been delay, caused by
the amount of time to secure an independent expert witness engaged by the First
Respondent, I McA. Legal Services Commission refused to pay the fees of the
initial expert appointed, and another expert then had to be appointed. Delays
caused by seeking funding for payment of experts can be reduced if the Legal
Services Commission are presented at an early stage, preferably before leave of
the Court is sought, with a written estimate of the proposed expert's costs
together with a draft letter of instruction.
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)
[36]
At the conclusion of this case the Trust sought
an Article 179(14) Order pursuant to a C2 application dated 11 November 2006,
"to impose a restriction on future proceedings with respect to MS".
The Trust's application was not restricted only to further Article 53
applications, and was not for a specified period. The reason why the Trust
prudently sought such a restriction was not because MS is vexatious or even a
persistent litigant. Indeed any applications which the second Respondent has
made have clearly been founded upon his love for his two children. Rather,
during the course of these proceedings MS gave evidence that he would like
increased contact with E and M; further he expressed his clear intention, next
year, to seek to have the children returned to his care. His partner is
expecting their child next year.
[37]
The Trust's reasons for seeking an Article
179(14) Order is because of the delicate, crucial and indeed exceptional state
of both E and M's respective care plans at this stage, for a variety of reasons
which have been alluded to above. In addition to the evidence contained within
the Trust's C2 application, the Trust also filed a letter dated 13 November
2006 from Sally Wassell containing brief 'comments' to support the Trust's
proposed restriction. I do not propose to reiterate any of the comments made by
this expert in this letter; I am conscious that no leave was given for this
letter to be filed and the parties did not have an opportunity to cross examine
Ms Wassell regarding her 'comments'.
[38]
The Trust does not seek this application to
violate any of the father's rights, particularly his Article 6 ECHR right to a
fair trial. In this regard I refer to the Trust's letter dated 20 November 2006
wherein Donna Coyle APSW sets out the assessment opportunities which the Trust
will offer the Second Respondent should he seek to engage and carry out
necessary assessments in order for rehabilitation to be reconsidered. The Trust
has clearly not closed opportunities for reunification; rather they simply ask
that the Court is proactive in monitoring the merits of any further application
by the father at the onset in order to decide if leave should be given to him
to commence any such application.
[39]
In considering the Trust's C2 application
pursuant to Article 179(14) of the Order I have considered the guidelines given
by the Court of Appeal in England set out in the case of Re P (Section 91(14)
Guidelines) (Residence and Religious Heritage) (1999) 2FLR 573, and also Re F
(Children) Restriction on Application) (2005) EWCA Civ 499. In addition I have
considered In the Matter of L and LI (Article 179(14) of The Children (NI)
Order 1995, GILF4105 delivered on 13 February 2004 wherein at page 3 Gillen J
recites the 11 points of the guidelines given in Re P.
[40]
Each child's Care Plan is at a crucial stage at
this time see comments above. It is the facts specific to these children's
respective care plans at this time, particularly their individual placements
and placement plans, which make the position exceptional.
[41]
The Second Respondent has been provided with an
opportunity to be re-assessed, should he earnestly wish to pursue
reunification, as set out in Donna Coyle APSW's letter dated 20 November 2006.
He will not be prejudiced in terms of funding these assessments, as the Trust
has indicated that it will fund same.
[42]
Ultimately, I allowed the Trust's Article 179(14)
application for a period of one year in respect of MS. During that year MS is
not prohibited from filing a bona fide application, rather, he simply has to
seek the leave of the Court first, thus his Article 6 rights have not been
denied.
Conclusion
[43]
In this case for E and M's Care Plans to succeed
at this particular time it is vital that they must be given the opportunity to
settle and attach in their respective placements, and indeed for E to prepare
herself for her new specialist long term placement to commence early next year.
The current level of contact, for different reasons for each child is not
meeting their needs at this time, and unless reduced could have serious
repercussions. I have no doubt that a reduction of contact is both necessary
and proportionate for E and M.
http://www.bailii.org/nie/cases/NIHC/Fam/2006/M2.html