[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> K (A Child), Re [2001] EWCA Civ 1893 (7 November 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1893.html Cite as: [2001] EWCA Civ 1893

[New search] [Printable RTF version] [Help]

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(Mr Justice Sumner/Her Honour Judge Anwyl)

		Royal Courts of Justice Strand London WC2A 2LL Wednesday 7th November 2001

Wednesday, 7th November 2OO1

1. LORD JUSTICE WARD: This is another chapter in a long and unhappy story which one cannot but listen to with dismay. V is the applicant's son. He was born on 8th October 1986. He is now 15 years of age. There has been a long history of concern shown by the local authority about his progress, and Mrs F, his mother, has placed before me today orders made by the Barnet Magistrate's Court in 1998 which she describes as false orders. I think her complaint is that they were made in her absence. They appear to be emergency protection orders and it is highly likely that they were made without notice to the mother, but that would hardly render them false. In any event, they are not strictly before me today, and there is no direct appeal to this court from the Family Proceedings Court. The orders have been overtaken by events.
2. On 25th May 1999 His Honour Judge Downs made a care order in respect of this boy, directing that there should be contact at the discretion of the local authority. The mother sought permission to appeal against that order. It was heard by Thorpe and Roch LJJ and her application was dismissed. This court was quite satisfied that the order was properly made. The court expressed some unhappiness about the way that contact had been dealt with, and Thorpe LJ thought that it would be far better if there was a precise pattern of contact. He said in the course of his judgment that the sooner the judge was aware of matters the better and that the mother should go back and seek a defined order. She did that and it went back to His Honour Judge Gee, who made an order on 20th September 1999. He also imposed a restriction on her applying under section 91(14) of the Children Act 1989.
3. There was another appeal to this court on 21st December 1999. The court set these section 91(14) restrictions aside, restored the application for contact and directed that it should be heard, if possible, by a judge of the High Court.
4. I think Holman J had occasion to deal with matters and organise some contact, but the most unhappy fact of this case, as I see it, is that the mother last took up the opportunity to see her boy in June 2000; and that is a long long time ago. The boy has had two birthdays since that time, and the mother, for reasons of her own, has chosen not to and go see him. I think she is very misguided and unkind to her son not to take up the opportunities to see him, and I wish she would listen carefully to what I have said.
5. Eventually the whole matter came before Her Honour Judge Pearce on 16th October 2000. She refused to discharge the care order and made an order for contact, which was to be monthly for two and a half hours on each occasion, the date, time and venue to be notified to the mother by the local authority with the proviso that, if the mother fails to inform the local authority of her intention to take up the contact within 48 hours, the arrangement will be cancelled. The local authority were to provide or reimburse the mother's return travelling expenses by public transport both for her and for grandfather, who is here in court; but the order was that contact was to continue to be supervised if the local authority wished to do so.
6. The mother appealed once again. That came before Hale LJ on 12th January 2001 and she dismissed the application for permission to appeal those orders. She begged the mother, as I am begging the mother, as Her Honour Judge Pearce had begged the mother, "Please, please, please, will you visit your son." But she takes no notice of us.
7. Then she applied on 29th August for further relief in an application of that day. She appeared to be seeking an order for an injunction, though it is not clear what injunction she sought. The reason for it was that she had not seen her son since June 2000 and she did not even know where he was living. She complained that he was taken away on false orders. I think the false orders were those in the Magistrates Court to which I have already referred. There is also a document, which may not have been before the judge, which is more explicit and that asks that Barnet Borough Council give the address of where the boy lives; and that they should bring him to the mother's home. She repeats that she has not seen him since June, and she says finally that V must be released by Barnet because he is held there illegally and by false orders.
8. If that was not precisely drawn to Sumner J's attention, I suspect mother has only herself to blame, though I note that the local authority were represented by counsel and they do not appear to have given auspicious help to the judge. Thus, he says at the beginning of his judgment:

"Today, I have had some difficulty in understanding precisely what it is that she wishes the court to do. I hope I have understood her principal aims, which are these. Firstly, to set aside the care order and have her son returned to her care. Secondly, an order that she can have contact with him."

9. I bear in mind that this matter was heard before him on 4th September. It was in the long vacation, and I can understand the pressure on the court at that time of the year.
10. The judge held that there was no prospect whatever of the court setting aside the care order. He considered that her failure to take up the access arrangement was a total impediment to her seeking to discharge the care order. She had shown no willingness to co-operate with the local authority and he was, in my judgment, totally correct in refusing to discharge the care order on the information he had before him. I remind myself that in January of this year Hale LJ had similarly approved the refusal by her Honour Judge Pearce to discharge the care order. With regard to contact, the judge said that he could see no point in making an order for contact. Again, one understands his predicament in the face of a mother who simply refuses to see the boy on any terms other than her own, and I can see no error in his approach there. In dealing with those orders in that way he did not, in my view, in any way affect the existing contact order but should be treated as declining to vary it in any way.
11. There was an exchange between the mother and the judge after that short judgment in which she wanted to know the child's address. The judge was clearly not willing to entertain further argument and declined to deal with that aspect of the case. If it was properly before him it may be that he could perhaps be criticised on that technical basis; but I think it would be most unfair to do so; and, in any event, the matter was quickly resolved because the mother came back to the court this time before Her Honour Judge Anwyl. So far as the application for permission to appeal Sumner J's order is concerned, I refuse to grant that permission. Judge Anwyl did have to deal with the request for disclosure of the boy's whereabouts. She made sure that Sumner J had not attempted that. She quite correctly therefore decided that it was a matter that she should in fact decide. But she held that there were two points needing her consideration. The first was the position taken by the local authority that disclosure of the boy's address was a matter for the local authority to decide in the exercise of the powers given under the full care order, and that they could not be compelled to disclose the address. At least I think that is the substance of the submission they were making.
12. The judge said:

"I think that, strictly speaking, that is correct. However, I did not feel it would be right simply to dismiss this application without hearing from the mother and looking at her present reasons for this application and her attitude towards contact and general knowledge about V at the present."

13. I read that passage in this way. It seems to me the judge is expressing a preliminary, but not concluded, view on the argument addressed by the local authority but deciding that, whether or not they were right, she was going to look at the merits.
14. The matter is not fully argued before me. My preliminary view, for what it is worth, is that, whereas the local authority undoubtedly have the power under the care order and under the parental responsibility that goes with it to determine where the child should live, and that they might be able to make those decisions without the court being able to interfere with those decisions (unless residence had become one of the starred provisions of the care plan recently recognised by this court in the case of Re W & B); but it is a very different thing to say that, having decided where to place the boy, they were not under any duty to disclose to the court where the child was for the purpose of a contact application properly before the court under section 34 of the Children Act. My view would be that they are bound to disclose the address if it arises in the course of a contact application, because it is only then that the court can decide how to deal with that. It is, however, not necessary to decide that point and I am certainly not giving permission to appeal to argue it: because if there was a discretion in the court to decide whether or not to disclose the address, the judge clearly exercised that discretion and she decided:

"This young man is immature and has learning difficulties and the advent of his mother suddenly out of the blue at his foster home, when he has not set eyes on her for over a year, must inevitably be distressing. There has been a history of total non-cooperation by the mother with the local authority and, indeed, previously with the child's guardian ad litem and the Official Solicitor within these proceedings. There are, I think, well-founded and grave concerns that she would misuse the information as to V's address and disrupt his placement. It is important to realise he will be spending the rest of his life in care and with foster parents. He has only recently moved to his current foster parents' home and, although he has settled well, he is at the minute in a particularly vulnerable position. I therefore refuse the mother's application to have the address of her son's foster parents disclosed to her."

15. That was a decision taken putting the child's best interests as her paramount consideration. It was an exercise of discretion that in my judgment was rightly made; and certainly it is not one which could be attacked as plainly wrong. There is therefore no realistic prospect of appealing against that part of her order and the application should be dismissed.
16. She went on, however, to deal with the local authority's application under section 91(14) of the Children Act. She described it as a draconian order, but she said

"... having regard to the history of the numerous applications and appeals, many of which have been without merit and all of which have been potentially disruptive to V, I am minded to grant this application. In doing so, of course I have V's best interests in the forefront of my mind but I also consider how extremely time consuming and costly these applications have been, as far as the local authority is concerned, that local authority needing its limited resources to assist and support families and children."

17. So she imposed a restriction upon the mother not to be able to apply to the court for three years.
18. Mother seeks permission to appeal that order. She draws my attention to the fact that when His Honour Judge Gee took a similar step way back in September 1999 that order was set aside by the Court of Appeal in December 1999, and rightly so on that occasion. Since then the mother has twice applied to discharge the care order. She refuses to cooperate. She refuses any contact save on her terms, and her applications for contact appear to be limited to no more than that, seeing the boy on the terms that she wishes. There is a need for some cooling-off, and in my judgment, although this was a draconian order, and although many may not have made it, and although even I might not have made it as the judge did here, it was clearly within her discretion. She applied the right principles, and it was not an exercise of discretion which fell outside the generous ambit within which there is room for disagreement, and I see no realistic prospect of successfully appealing that order at this time given the history that is now presented to me. So her applications are dismissed.
19. The mother complains that there have been endless breaches of her human rights, and she has taken the matter to the European Court in Strasbourg. She complains (and I list these by way of example only and I do not deal fully with them) that there has been a breach of Article 3, that no-one shall be subjected to torture or to any human or degrading treatment or punishment. As I understand her case, she complains of the degrading conditions in which she was forced to live at some time early on in her arrival in this country when the local authority failed to provide decent accommodation for her. If that is right (and I express no view upon it because it is not properly before me), it is a matter relating to the county council and does not arise in these Children Act proceedings at all.
20. I think she is complaining also that the conditions in care amount to inhuman or degrading treatment because she complains that her son is being starved both of food and proper education. There is nothing on the papers which justifies that complaint at all, and I see no merit in it whatsoever. She complains under Article 5 that, I think, her son's right to liberty has been invaded. The care order does not constitute such an invasion of liberty. It is a step taken after due process and after a proper consideration of the competing interests of rights to family life which she has and the boy have. So I see no breach of Article 5, nor do I see any breach of Article 8 in the circumstances of this case.
21. She complains of a breach of Article 6. I think what she is complaining of is that her son's voice has not been heard in these proceedings. That is wrong because he was represented by a guardian ad litem for a substantial period of time and by the Official Solicitor on other occasions. His voice was duly heard. That he did not appear in the two applications before me is no doubt the fault of the mother for not having sought the proper directions to that effect; and I cannot see any breach of Article 6 which has come close to resulting in the lack of a fair trial. I simply do not understand her complaint.
22. She complains under Article 14 of discrimination. She has not had any discrimination shown against her in these proceedings. She has had the benefit of an interpreter whenever an interpreter has been produced by her. In fact she made her submissions to me today without the benefit of the interpreter, who arrived after she had concluded her submissions. I understood what she was saying, I felt she understood me and I cannot see that she has been discriminated against at all. But she has taken the matter to the European Court and the European Court will, I am sure, deal fully with those matters as they arise before them.
23. For present purposes the applications are dismissed and, although I am probably wasting my words, I will say once again to the mother and to the interpreter, whom I beg to please explain this to Mrs F so that she understands it: at the moment the only contact she is going to have with her son is the contact which has been ordered by the court. It is up to her to seek to restore that contact. I think she should do so, because I think it is cruel of her not to visit her son, who must be missing her, wondering what on earth has happened to her, and it is her duty as a mother to take up that contact. If she loves her boy she will go and see him.
Order: Applications dismissed.