Neutral Citation no. [2001] NIFam 5
Ref:     
GILF3365

 
Judgment: approved by the Court for handing down
Delivered:
09.03.2001
(subject to editorial corrections)

 

 

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
 
 ________ 
 
FAMILY DIVISION
 
 ________ 
 
RE: T (A CHILD) AND R (A CHILD) (DISCHARGE OF CARE ORDER) 
 
 _______ 
 
GILLEN J
 
Background facts
            The chronological sequence of events and the factual background of this case may be set out as follows:
(a)        T was born on 14 July 1993 to P, the child’s mother and applicant in this matter, and to S the natural father.  By the time of T’s birth, P was engaged in a new relationship with G and in February 1994 P and S separated.
(b)       On 19 October 1997 R was born, P and G being the respective birth parents, albeit that they did not cohabit at that time.
(c)        In April 1998 P returned to Northern Ireland and formed a new relationship with M.  Social workers from the Down Lisburn Health and Social Services Trust (“the Trust”) a respondent in this matter, took steps to warn P that it was their opinion that the children were at risk of significant harm in relation to potential sexual abuse at the hands of M.  The Trust had very serious concerns in relation to M and took the view that he should not be permitted to have contact with any of the children unsupervised.  P refused to accept these warnings.  Accordingly, on 15 May 1998 emergency protection orders were granted by the court in respect of R and T.  Thereafter P married M.  On 21 May 1998 interim care orders were granted in respect of each child.  The Trust were not satisfied that P was separating from M despite her promises to the contrary, and on 14 December 1998 full care orders were granted for both children.  The children had been placed in separate foster placements.  During the course of 1999 there was evidence that P and M were living together in England and Cambridgeshire Social Services were informed by the Trust of the concerns.  On 12 July 1999 P gave birth to another child namely, M (a minor).  P obtained a residence order in respect of M (a minor) and at the same time an order of no contact was made in respect of M and he was prohibited from moving the child from the jurisdiction. 
(d)       By January 2001 Cambridgeshire Social Services informed the Trust that they were ending their involvement with P and that she and M (a minor) (now known as J) were doing very well.  They however repeated their concerns that P would find it difficult to cope for all three boys and that she perhaps underestimated the demands that this would entail.
(e)        A psychologist from Cambridgeshire Social Services Learning Disability Team assessed P.  The assessment placed her in the low average for intellectual abilities, although she did not meet the criteria for learning disability.
(f)        Recent assessments have been also conducted.  Dr Srinath, consultant psychiatrist at Addenbrooke’s Hospital has begun work with P.  He has indicated to the Trust that he feels it is too soon in his work to make an assessment of feasibility to parent.  P continues her work at Addenbrooke in relation to her abusive experiences.
(g)       Once the Trust had some measure of confidence that the ties with M had been severed, the Trust approached their colleagues in Cambridgeshire with a view to rehabilitation.  To protect the interest of T and R and to ensure that they did not drift in the public care system, the Trust has explored permanency for these children.  The approval of the adoption panel to approach the court for a freeing order for the children has been obtained.  However, before the Trust adopt this approach, it is intended to give P a final opportunity to demonstrate her ability to take care of R and T.
(h)       T, who is now seven years of age, is described in a report from the Trust as a child who is consistent in his wish to live with his mother.  He expresses this clearly and unequivocally and is genuinely distressed at separation.  He attends a school for moderate learning disability.  His teachers expect that he will always need a place in special education.  The Trust hope that there will be the possibility that T can return to the care of his mother and regard this as the best permanent solution for him, if it is possible.  His birth father has not had contact for a very substantial time and gives no indication that there is to be a change in his attitude.  It is currently unclear in the view of the Trust whether or not P can care adequately for T and this requires assessments.  As I have indicated below, the Trust therefore opposed the current application before this court by P that the care order be discharged.
(i)        R is now three years of age.  Emotionally he is well settled in his current placement and is very much a part of the foster carers household.  It is the Trust’s view that any change is likely to have a serious impact on him and in the short term it is inevitably going to be distressing.  However, it is felt that the current placement does not offer a permanent solution for R.  His birth father has not had contact for a substantial period of time and gives no indication that this situation is to change.  It is unclear whether or not P can care adequately for R and the situation is being assessed.  It is hoped that on the successful completion of P’s programme of assessment, R can be returned to her care, but the Trust views that the outcome of this assessment will take some time.  Accordingly, as in the case of T, the care plan envisaged by the Trust is that the full care order should remain in place to allow the period of assessment of P to be completed.  The aim of the plan is to assess whether P can care for T and R.  The plan is in stages.  It involves P returning to live in Northern Ireland with increased contact with the boys individually and together.  This increased contact will be closely monitored.  If it proceeded well, P would move to a residential assessment.  Her work at Addenbrooke’s will take another three months.  It seems to be agreed that she should have the opportunity to complete this work and then return to Northern Ireland.  To fully assess the impact of increased contact and to allow the other services provided to work effectively this stage of the assessment would take at least three months.  Depending on the successful outcome of the initial stage, P should move with both boys and J to a residential assessment such as Thorndale.  In the interim it is a Trust plan that both boys will continue in their current placement.  The Trust will ask Dr Elizabeth Cormack of the Down Lisburn Trust Child and Family Consultation Team to work with R, in particular to prepare him either with his mother or elsewhere. 
            Accordingly given that there is some measure of doubt as to whether P will be able to complete assessments successfully, and thus there would be an need for alternative permanency plans for T and R, the Trust opposed any discharge of the care order. 
The legal proceedings now before the court
            The applicant mother of the children issued a summons under Article 58 of the Children (Northern Ireland) Order 1995 (hereinafter called “the 1995 Order”) to discharge the care order in the case of each child.  
            The Trust was a respondent to the applications.  
            Pursuant to Article 60(6) of the Order, the Family Proceedings Court at Ards appointed a Guardian Ad Litem for the children in the proceedings.  Needless to say this was the appropriate statutory step to take.  
            Both the Trust and the Guardian Ad Litem were of the view that these orders should not be discharged because it was simply too early to assess whether or not P was able to adequately care for T and R.
            The case was subsequently transferred from Newtownards Family Proceedings Court on 6 June 2000 to the Family Care Centre sitting at Belfast due to the complex nature of the proceedings.
            The Family Care Centre at Belfast on 22 June 2000 ordered that the matter be transferred to the High Court due to the complex nature of the proceedings.  These transfers occurred under the terms of the Children (Allocation Proceedings) (Northern Ireland) Order 1996.
            When the matter came before me for hearing, I was informed at the outset by Miss Gregan, counsel on behalf of the applicant mother, that she wished to apply to withdraw her application to discharge the care order.  She also had instituted before this court an application for contact with the two children on the grounds that her present contact was of insufficient frequency to maintain a good relationship with them.  She sought to withdraw this also.
            Counsel on behalf of the respondent father G had no objection to this course of action.  S has not featured in this case.  Miss O’Hagan, who appeared on behalf of the Trust, allied herself to the application by the mother to withdraw her application to discharge the care orders and the application to withdraw the contact application, the latter issue having been resolved.  
            The matter that essentially arises for my determination in this case centres on the submissions by the Guardian Ad Litem, Mr Law, who was represented by Ms McGrady.  It bears repeating that the Guardian Ad Litem had been appointed by the court pursuant to Article 60 of the 1995 Order.  Article 60, where relevant, reads as follows:
“60-(1)            For the purpose of any specified proceedings, the court shall appoint a Guardian Ad Litem for the child concerned unless satisfied that it is not necessary to do so in order to safeguard his interests.
 
Article 60(6) reads:
 
“In this article ‘specified proceedings’ means any proceedings –
 
(a)        ….
 
(b)       ….
 
(c)        On an application for the discharge of a care order or the variation or discharge of a supervision order.”
 
            Ms McGrady submitted that I should simply adjourn the applications to withdraw the applications to discharge the care orders and the contact order pending the assessments on the mother which were at least three months away from completion in any meaningful sense.  The result of this would be that the Guardian Ad Litem could remain in the case and play a meaningful role.  In terms the Guardian was opposing the application by the mother to withdraw the application to discharge the care order.  In essence the Guardian’s view was that there were no guarantees whatsoever that the care plan as envisaged by the Trust would be successful and that developments were at very early stage.  In particular the minor R presents significant attachment problems with his birth mother P which may not be capable of successful resolution.  Indeed there is even a difficulty with housing P when she returned to Northern Ireland.  However in cross-examination Mr Law conceded that matters such as the housing issue are within the realm of care planning decisions to be taken by the Trust.  He accepted that the applicant P was not in a position to deal with her discharge application at the moment and that whilst the Guardian favoured a cautious approach to the whole matter, at this sensitive time, the Trust is in a position to monitor the position through the care plan and to make any necessary application at the appropriate time.
            The essential difficulty that the Guardian faces of course is that proceedings may cease to be specified proceedings under Article 60 and if this occurs, then the appointment of the Guardian Ad Litem must be terminated by a judicial rather than an administrative act.  A Guardian Ad Litem was appointed in this instance in accordance with the rules of court which provide that the appointment shall be made as soon as practicable after the commencement of the proceedings unless the court considers the appointment was not necessary to safeguard the interests of the child.  If the application to discharge the care order is withdrawn in this case together with the concurrent application with reference to contact, then the proceedings are no longer specified proceedings within the terms of Article 60 and the role of the Guardian Ad Litem falls to be terminated.  If on the other hand, the applications are adjourned then the Guardian can remain under the terms of the appointment and continue to carrying out the duty to safeguard the interests of the child with regard to the welfare principles.
            I have absolutely no doubt that the application by the Guardian Ad Litem in this instance is both a reasoned and considered approach.  Indeed there is much to be said for the added experience of the Guardian in circumstances such as this.  
            Under Rule 4.6 of the Family Proceeding Rules (Northern Ireland) 1996 an application may be withdrawn only with leave of the court.  In London Borough of Southwark –v- B 1993 2 FLR 559, Waite LJ said at page 573:
“The paramount consideration for a court dealing with a rule 4.5 application is the question whether the withdrawal of the care proceedings will promote or conflict with the welfare of the child concerned.  It is not to be assumed when determining that question that every child who is made the subject of care proceedings derives an automatic advantage from having them continued.  There is no advantage to any child being maintained as a subject of proceedings that have become redundant in purpose or ineffective in result.  It is a matter of looking at each case to see if there is some solid advantage to the child to be derived from continuing the proceedings.”
 
            I must also bear in mind the effect of the 1995 Order.  This has been well summarised by Butler-Sloss LJ (as she then was) in Re: L (Sexual Abuse: Standard of Proof) 1996 1 FLR at page 124 where she said:
“The effect of the Children Act is to set aside the former powers of the court in wardship and to remove from the court any continuing control over children after the making of a care order unless or until a further application was made to the court.  On the making of a further application, such as for residents or contact to the child, the powers of the court on the exercise of discretion under Section 1 are restored for the duration of the application.  If a care order remains in place, other than by control over contact by virtue of the provisions of Section 34, the court has no further part to play in the future welfare of the child….  This interchange between the judicial control of children, the subject of applications, and the local authority responsible for children placed in care under the Children Act, is a difficult and sensitive area.  The point at which the court withdraws from further control over the child and passes the responsibility to the local authority is a matter of the exercise of discretion by the court and will vary with each set of circumstances.  But at some point, if a care order is made by the court, it must hand over the future arrangements for the child to the local authority.  That is not abdication of responsibility by the court; it is acting in accordance with the intention of the legislation.  The Children Act provides for many of the most important decisions, including whether to place a child for adoption, to be made by the local authority and therefore there is nothing untoward in the judge leaving the ultimate decision in the hands of the local authority with whom the child is placed.”
 
            In this context and in that case the court made it clear that an interim care order is to be used for its intended purpose and not to be extended to providing a continuing control over the actions of the local authority.  Similarly in this case, I think it would be against the spirit of the act if I allowed an application by this mother to discharge a care order, to be used as a platform by the court and the Guardian Ad Litem to provide a continuing control over the actions of the Trust.  That is particularly the case where, as in this instance, I am satisfied that the Trust is alive to all the concerns that currently exercise the mind of the Guardian Ad Litem.  Just as a court does not have power to impose conditions on a care order under the 1995 Order (even if such course of action was perceived to be in the bests interests of the child) (see Re T (a minor) (Care Order: Conditions) 1994 2 FLR 423), so I do not believe that it will be consistent with a purposive construction of the order to permit the policing of this care plan and care order by the Guardian Ad Litem through the medium of adjourning the application to withdraw the application to discharge the care order.  I do not consider that the order can be sufficiently widely construed to embrace such a possibility.  
            The withdrawal of an application is a matter which has to be considered by the court as carefully as any other application under the 1995 Order (see Re: F (a minor) (Care Order: Withdrawal of Application) 1993 2 FLR page 9).  Having afforded the Guardian Ad Litem the opportunity to consider the application to withdraw and to report and give evidence before me, I have come to the conclusion that whilst the Guardian Ad Litem has acted entirely responsibility and conscientiously in this case, the basis of his application to me amounts to an attempt to police and supervise two care orders.  The mother in this case has made an application to discharge the care orders and she is no longer in a position to deal with that application or does not wish to proceed with it.  However well meaning the intention, I cannot permit that opening created by the mother’s application to afford an opportunity to the Guardian to remain in the case and supervise the continuing care plan indefinitely.  I believe that the Trust is fully aware of the risks in this case and of the appropriate steps which require to be taken to secure the best interests and welfare of the children.
In all the circumstances therefore I consider it is appropriate that I should grant leave to the mother to withdraw her application to discharge the care orders and I refuse the application of the Guardian Ad Litem to adjourn the application further.  I also grant leave to the mother to withdraw her contact application.

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
 
 ________ 
 
FAMILY DIVISION
 
 ________ 
 
RE: T (A CHILD) AND R (A CHILD) (DISCHARGE OF CARE ORDER) 
 
 _______ 

 
J U D G M E N T
O F
GILLEN J
 
 _______