Care orders – Children – Parental contact

Re H (a child): CA (Civ Div) (Lords Justice Ward, Lloyd): 25 September 2008

The appellant mother (M) appealed against a care order made in respect of her daughter (T).

In care proceedings following the separation of T's parents, a judge had made an order placing T in the care of the respondent local authority and leaving contact with T at the discretion of the local authority. The judge found that M had exposed T to emotional harm and that M was incapable of meeting T's emotional needs. The judge found that M had: denied T the opportunity to contact her father and maternal grandparents and had poisoned her mind against them; exposed T to violence that existed between M and her carer; exposed T to emotional language between M and her carer. The judge further found that while T, as a girl aged ten and a half, had made her wishes to be with M clear, and that those wishes had to be respected, they were not determinative and that it was inappropriate for T to be in M's care. T was placed in foster care by the local authority.

Held: The judge erred in making the care order, as he failed to have proper regard to T’s needs other than her emotional needs. T was of an age and understanding that she was astute enough to be separately represented. It was clear from the evidence that she had a strong and significant attachment to M, that she was in some distress by being separated from M and that she wished to return to M. In reaching his assessment of T’s needs, the judge failed to take into account what T would suffer if she was placed into long-term care, in particular the loss of T’s existing relationship with M. It was appropriate to quash the care order and return T to M’s care with a supervision order of three years’ duration.

Appeal allowed.

Elizabeth Woodcraft for the appellant; Alexandra Maude-Roxby for the respondent local authority; J Brown for the interested party.

Children – Disclosure orders – Family proceedings – Medical treatment – Permission hearings – Witness statements

Re C (a child): CA (Civ Div) (Lord Justice Wilson): 2 September 2008

The applicant father (F) applied in long-running proceedings concerning his son (S) for permission to appeal against a refusal of leave to disclose a witness statement to specified medical professionals.

S suffered from Asperger syndrome and obsessive compulsive disorder and was an in-patient at an adolescent mental health unit. His parents were separated and S had made it quite clear that he wanted no contact with F. F blamed S’s mother for that decision, maintaining that she was influencing S with her own views and failing to take any steps to safeguard the relationship between a loving father and his son.

There had been frequent proceedings in the county court between the parents. The judge in the court below had granted part of F’s application for disclosure by directing that he be permitted to disclose transcripts of four judgments to the consultant psychiatrist in charge of S’s treatment and to S’s GP. She had ordered that they should be at liberty to disclose them to S if they thought it would assist in his treatment, and also to any other professional responsible for his wellbeing. She had refused to authorise disclosure of a recent witness statement made by F, to which an earlier statement was appended, on the basis that it contained F’s perception of the problems that had arisen as regards his relationship with S, a perception that was not shared by S’s mother, and as such the statement could not be regarded by any professional as an agreed document or a document containing facts as found by the court.

F submitted that: (1) the judge was not qualified to assess whether disclosure of the witness statements might assist in S’s treatment and that she ought to have appreciated that the treating professionals might be assisted by them and ought to have left it to their discretion whether it was appropriate for S to see them; (2) pursuant to rule 10.20A(3) of the Family Proceedings Rules 1991, permission from the judge to send witness statements to treating clinicians was not necessarily required if the purpose of the disclosure was ‘to enable the... child... to obtain health care or counselling’.

Held: (1) Disclosing statements to clinicians on the basis that the clinicians might be assisted by them would lead, in effect, to a general disclosure of all significant documents filed under the Children Act 1989. That was not the practice of the family courts and would be an abdication of the duty to consider in every case whether there were grounds for lifting the confidentiality that surrounded documents filed in such proceedings.

F’s two witness statements presented one side of the story and included substantial criticism of S’s mother. The relevant parts of the earlier statement had been incorporated into the judge's order, which F already had permission to disclose. The more recent statement, hotly contested by S’s mother in parts, had not been the subject of any judicial determination. Any authorisation by the courts to disclose it might be misunderstood by professionals to represent an endorsement of the allegations contained in it. It had been incumbent on the judge below to form a preliminary view as to whether F’s statements might usefully be deployed by those treating S. As S had an extremely close relationship with his mother and, currently, an antipathy towards F, it was almost impossible to consider that disclosure would have any effect other than to reinforce S’s antagonism towards F. The decision of the judge below could not be criticised.

(2) The table in rule 10.20A(3) did not entitle the documents to be sent to S’s clinicians without permission from the court because the proposed disclosure would not be to enable S to ‘obtain’ treatment, since he was already in receipt of treatment. The purpose of the rule stemmed from the situation where a professional not actively involved in the child’s treatment was asked for the purposes of legal proceedings to make an assessment of him. Such an assessment often resulted in advice that a child should obtain treatment which he was not currently obtaining, and the purpose of the rule was, therefore, to entitle a party to send that sort of report to the appropriate local resource in order to ‘obtain’ treatment for that child. In any event, the table and the generalised permission within it were subject to any contrary direction of the court pursuant to rule 10.20A(2)(b), and, in the present case, the judge below had, in effect, given a contrary direction. F was given permission to disclose the present transcript to S's clinicians.

Application refused.

In person with a McKenzie friend for the applicant father; no appearance or representation for the respondent mother.