C and B (Children ), Re [2000] EWCA Civ 3040 (30 March 2000)

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHELMSFORD COUNTY COURT
(Her Honour Judge Ludlow)

Royal Courts of Justice
Strand
London WC2
30th March 2000

B e f o r e :

LADY JUSTICE HALE
SIR CHRISTOPHER STAUGHTON

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C AND B (CHILDREN

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(Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)

____________________MR A LEVY QC and MISS G GILLIATT (Instructed by Kenneth Barnes & Co, M Nightingale House, 80 Broomfield Road, Chelmsford, Essex) appeared on behalf of the Appellant
MR J DUGDALE (Instructed by The Legal Department, Southend-on-Sea Borough Council, PO Box 6, Civic Centre, Victoria Avenue, Southend-on-Sea) appeared on behalf of the Respondent

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HTML VERSION OF JUDGMENT
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Thursday 30th March 2000

JUDGMENT

    1. LADY JUSTICE HALE: This is the parents’ appeal against the order of Her Honour Judge Ludlow in the Chelmsford County Court on 20th October 1999. She made care orders in respect of the two youngest children of the family, C, born on 22nd July 1999, who was then three months old and is now eight months; and J, born on 4th September 1998, who was then 13 months and is now 18 months. Secondly, she gave permission under section 34(4) of the Children Act 1989 for the local authority to refuse contact between the parents and all four of the children: C, J, their older sister, CM, who was born on 1st February 1994 and who is now six, and her half sister, K, who was born on 29th February 1988 and who is now 12. Thirdly, she imposed a prohibition under section 91(14) of the Children Act 1989 on any application by the parents for contact or to discharge the care orders until 21st October 2001 – that is, for two years – without permission of the court.
    2. All care cases are sad, but not all of them are difficult. This one is both. The oldest child, K, is now 12. Her father was Mr C. The parents were not together for very long after her birth. The father of the youngest three is Mr B. He and the mother have an unusual relationship, with separations, but they keep coming back to one another and appear to be committed to one another for the long term. Neither of them had an easy childhood. The mother’s parents were divorced when she was very young. Her own mother has been diagnosed with manic depressive illness; she has been married five times and the mother had to take considerable responsibility for her own mother at difficult times. The father was adopted but his adoptive parents were killed in a road accident when he was six. He was brought up by other adoptive relatives but it was not always a happy experience for him. Both of them are capable of considerable commitment and stability. The mother worked very hard in various employments until she had children. She created what has been described as a “glorious” home. She has had only two serious relationships, with the fathers of her children. The father has worked for many years as a hospital porter. Both are thoroughly committed to all four of the children.
    3. There were no problems reported for the first six and a half years of K’s life. There is nothing in the social services chronology. Referrals did begin in late 1994 and continued during 1995, but there was nothing which was thought worthy of child protection action. Then, over the summer of 1996, the mother suffered a breakdown in her mental health and was eventually admitted to hospital for a month, from 2nd September to 4th October. This was associated with well-documented harassment from her neighbours, a break-up (temporary, as it turned out) of her relationship with the father and burglaries at her home.
    4. We do not have all the evidence from the earlier proceedings about the two older children, and so it is difficult to piece together a precise account as to how they came into care. The fullest account before us is in the report of the Marigold Family Centre dated 23rd July 1997. There appear to have been two incidents, on 22nd and 25th September 1996, when K was found at home alone. Apparently the mother was on leave from hospital at the time, certainly during the first of those incidents. This provoked a case conference with the conclusion that K should be cared for by an aunt and CM by her grandmother. On 24th October 1996 the mother agreed that the children should be accommodated, but on 25th October the children were taken into police protection. I find the circumstances recounted in the report about that event strange, and say no more about them. An emergency protection order was made on 28th October and care proceedings were begun. The children were placed in a foster home where, as I understand it, they have lived ever since. I am told that the mother believes that she agreed to voluntary accommodation on the basis that she would have the children back when she was better, but compulsory measures were taken instead. It has certainly not helped her view of the local authority and its actions.
    5. The care proceedings took until 19th September 1997. On that date His Honour Judge Howe made care orders in relation to both girls. There were at that stage four sets of reports. Firstly, there were psychiatric reports on the mother by Dr Chowdhury dated 17th December 1996 and 30th April 1997. These were generally favourable to the mother, although they did advise that she took a very small dose of medication which would assist with her moods. Secondly, there was a series of psychological reports by Mrs Martin Alam. The main one is dated 28th February 1997, but there were follow-ups on 3rd March and 18th August. Thirdly, there was the social work assessment by the Marigold Centre dated 23rd July 1997 which I have already mentioned. Fourthly, there were the inquiries of the guardian ad litem, Mrs Eleni Sandrini, whose report is dated 9th September 1997. All of those reports are in the bundle before us.
    6. Most unfortunately we do not have a transcript of His Honour Judge Howe’s judgment or any annexed statement of the basis upon which the court was satisfied of what are known as the threshold criteria in section 31(2) of the Children Act 1989. That is the necessary threshold relating to actual or likely significant harm, without which no court may make either a care or a supervision order. Neither do we know what facts were found by the learned judge. We can only surmise from the evidence in our bundles. From this we read of those two incidents of leaving K alone; of the view that K had been given too much responsibility for her younger sister; of incidents where the mother had lost her temper or behaved in an embarrassing way in front of the children. The evidence of actual harm appears to be based on Mrs Alam’s report of 28th February 1997 which contains, among much else, the following passages. Paragraph 12.2:

“Formal assessment indicates that [K] is functioning overall at a level significantly below her chronological age. . . It is impossible to make a definitive statement about the causation of [K]’s learning difficulties. . . My observations coupled with indications obtained from the school staff, suggests that a significant proportion of [K]’s learning difficulty is the result of environmental factors – namely, limited exposure to age appropriate play and leisure facilities.”

    1. Paragraph 12.3:

“In my opinion [K] has been psychologically harmed by the experiences she has suffered in her childhood. She has not been offered sufficient protection, nor been provided with age appropriate rules and expectations . . . It would appear that [K] has a warm, but somewhat detached attitude towards her mother. . . She has suffered emotionally from the unusual parenting offered by [the mother].”

    1. Paragraph 12.5:

“CM appears to have come through these proceedings relatively unscathed, secure in the knowledge that her big sister [K] is with her.”

    1. It appears therefore that the orders must have been based on actual harm to K’s intellectual and emotional development and the likelihood of such harm in the future to CM. This was obviously not at anything approaching the most severe end of the scale, but by the end of the assessment process (which was, after all, some ten or eleven months after the children had been taken into care), the result was a clear view of K that she did not want to return home. Those views seem to have developed over the course of the proceedings and may to some extent have been influenced by the parents’ variable response to her complaint of sexual abuse by her step-grandfather, the maternal grandmother’s husband. Those points were coupled with a severe pessimism on the part of the professionals about the mother’s understanding of the situation and capacity to change. The care plan at that stage was for both girls to remain in long-term foster care.
    2. After that there were two important developments running in parallel. Firstly, both the mother and the father found it hard to accept the decision and to abide by the restrictions and limitations on contact which were placed on them by the local authority. The last official contact was in April 1998. The local authority was not willing to arrange any more contact without discussion with the parents because of the problems that were being experienced and the unhappiness of the girls. That discussion did not take place, so there has been no contact since. However, the homes are so close that unofficial meetings have taken place. The judge found that the parents’ behaviour around contact had caused further significant harm to K.
    3. On 17th July 1998 the mother applied to discharge the care orders and, in the alternative, for a defined contact order. The discharge application was withdrawn in December 1998 but the contact application continued. There was a report from Mrs Alam of 20th November 1998. This was clear that K wanted to stay where she was and did not want any kind of contact with either the mother or the father. That appears to have been based upon their attitude to the allegation about the step-grandfather. CM seemed to have accepted the foster placement as her permanent home but was confused about where her loyalty lay. Mrs Alam had the impression that she would welcome some limited contact with both the father and the mother and also that CM felt that the foster carer was antagonistic towards the mother.
    4. There was a psychiatric report on the mother by Dr Wilkins, commissioned on her behalf, which was dated 23rd December 1998. His conclusions are of some importance. They have to be seen in the light, firstly, of the fact that he was instructed on behalf of the mother but, secondly, that he is an adult and not a child psychiatrist. I quote from his opinion:

“1.[The mother] has a history of depression and possibly mania in 1996. A diagnosis of manic depression was made, but there has been little evidence of this subsequently. . . There is no evidence at the moment of ongoing mental health problems. . . .

“2.[The mother’s] main problem is with learning difficulties. This of course is not just limited to educational limitations but to learning difficulties in all aspects of her life and her attitude towards her children is evidence that she has learning difficulties in relation to her relationship with the children and her relationship with statutory agencies. . .

“3. Her style of thinking indicates that she has difficulty in accepting her limitations. . . This is likely to be a long-term characteristic of [the mother] and one that will interfere with any attempts made by statutory agencies to engage with her positively. . .

“4.Finally, whereas there are no obvious psychiatric reasons such as that disqualify [the mother] from parenting her children, her personality characteristics indicate that such parenting would be very difficult and liable to instability, exposure of the children to the possibility of harm, both emotional, physical and possibly sexual. . . “

    1. The local authority issued a cross application to refuse contact with the girls on 8th March 1999.
    2. The second important development was that, presumably in late 1997, the mother became pregnant with J. She saw a good deal of her general practitioner, Dr Adey, during her pregnancy. He has known her for many years and seems to have given her consistent support, including support for her moves to recover or regain contact with the girls. He saw the difficulties in 1996 as related to her mental breakdown then. J was born on 4th September 1998. The local authority thereafter deliberately kept a low profile about him. They were reluctant to take any action. The general practitioner, the midwife and the health visitor had no cause for concern about J’s care or his development.
    3. However, the guardian ad litem in the proceedings concerning K and CM did have such concern, and it was at her instigation that a report under section 37 of the Children Act 1989 was ordered on 30th March 1999. This is a report in which the local authority is invited to consider whether or not there may be grounds for bringing care proceedings in relation to a child. That report was contracted out, very wisely, by the local authority to an experienced independent social worker, Mr Williams. He made reports dated 14th June and 4th July 1999. His conclusions were these, in his second report:

“7.Past expert opinion has suggested that [J] is vulnerable to harm that derives from [the mother’s] reaction to stressful situations such as a conflict within her relationship with [the father]. At such times [the mother] has become irrational, aggressive, emotionally demanding and incapable of placing the children’s needs before her own. . .

“9.Overall, there is no evidence to feel reassured that the family situation has altered in any significant manner to oppose a concern that in the future [J] is likely to suffer the same harm that befell his sisters. . .

“10.At the moment there is no evidence that [J] is suffering any harm. There is no suggestion that [the mother] and [the father] do not know how to meet an infant’s physical needs. My observation of [the father] at play with his son is that it was totally appropriate. The home appears comfortable, clean and well appointed. The Health Services, the only agency having direct contact with [J], do not have any current concerns for him. If situations from the past were to be re-enacted in the present and [J] experienced a similar home environment as his sisters, one might expect him to fail to thrive at this age. . . .

“11.However, the fact that he appears to be thriving physically at the moment is not necessarily a reassurance. It is highly likely that [J] will suffer similar significant harm as his sisters in the future. Every indicator points to this likelihood. There is a high level of certainty that, without drastic intervention in the present, there will need to be drastic intervention in the future only after it has become apparent that [J] has suffered significant harm.”

    1. By that time the mother was shortly to have her youngest child, C. Mr Williams had found it difficult (as, it has to be said, had others) to see the mother as often as he had wished or, indeed, as had been arranged, and she had also been away from home for a while.
    2. That report came before His Honour Judge Groves on 8th July 1999. The local authority had applied for an interim care order in relation to J. We are told that the matter was dealt with on submissions and that the mother and father left court before the hearing ended. The result was an interim care order and a recovery order in relation to J. I am bound to comment about that. On what basis could it possibly be appropriate to remove a ten-month-old baby from the only parents and home he had ever known, at a crucial stage in the development of his attachments, when there was no evidence that he was at immediate physical risk and, indeed, no evidence that he was at immediate emotional risk? All the evidence was that he was doing well. All the evidence was that there was no existing pointer to anything that might have been thought to indicate that he was not doing well at that time. Any evidence of a risk of harm was to his intellectual and emotional development at a considerably later stage. The report of Mr Williams which I have quoted tended to assume that it had been shown that CM had suffered harm when, as far as the evidence before us is concerned, there was no evidence to support that assumption.
    3. I do not, of course, wish to suggest that there are no cases in which one should intervene now to prevent future harm, or that none of those cases may warrant immediate pre-emptive action before the case comes on for full hearing. But this was nowhere near a clear enough case of the former to warrant the latter. It was a classic example of a situation where the case for intervention should have been proved by a full hearing in court before the intervention took place, and not after.
    4. Worse was to follow. The mother had C in hospital on 22nd July 1999. The father and J visited her, and J was recovered from the hospital then. Not only that, a police protection “order” (as it is called) was made and an emergency protection order subsequently made in relation to C that same day. Again, I am bound to comment. I find it quite impossible to see how that could be justified under the terms of section 44(1) of the Children Act 1989. They require that there is a risk of significant harm to the child if the child is not removed or kept where the child is now. Such orders are intended to be made when there is an emergency and it can be shown that unless emergency action is taken that child will be at risk of significant harm during the period of the order. As I have already pointed out, there was no evidence of any immediate risk of harm to either of these children. I appreciate that there may have been a worry, resulting from the mother’s failure from time to time to keep appointments and sometimes the difficulty of finding out where she was. But this was not a case in which that risk should be put too high. When one bears in mind the strength and the depth of both parents’ ties to the neighbourhood, in particular the fact that the father had worked for many years as a hospital porter in the neighbourhood, the idea that these parents were likely to do what is colloquially called “a runner” seems to me unlikely in the extreme. I hope that I am right about that.
    5. The sense of injustice that must have been felt, bearing in mind the limitations that many parents have in understanding the subtleties of local authorities’ concerns and bearing in mind an acknowledged low anger threshold on the part of that mother – we all know that she does have a tendency to get angry but she is not alone in that: lots of people do – may explain a considerable amount of what followed.
    6. On 26th July 1999, greatly to their credit, the family proceedings court refused to make an interim care order and to separate C from her mother. An interim supervision order was made. The case was transferred to the county court. When it was heard by the county court on 27th September 1999 an interim care order was made. Again we do not know exactly why this was. Both children were therefore placed with the same foster carers. Then, on 20th October 1999, there was the final hearing before Her Honour Judge Ludlow, with the results that I have already described.
    7. It was, as one would expect, a very clear and in many ways a very sympathetic judgment. That has to be acknowledged. What were the threshold criteria found by the judge? Obviously no actual harm had yet befallen either J or C. The criteria can, I believe, be deduced from the following passages from her judgment on page 20 of the transcript:

“I have sadly come to the conclusion on all the evidence before me that both these parents have no understanding of what went wrong in their parenting of [K] and was beginning to go wrong in relation to [CM]. . . . Their volatility and aggression are formidable forces which have been described in these papers and I have seen for myself . . . I find the evidence of Mrs Alum and Dr Wilkins helpful and cogent and I accept their conclusions that, given the mother’s mental state, it is unsafe for any child to be brought up in the parents’ household.

“Unfortunately, the history set out in this judgment and the evidence filed since September, 1997 and adduced in court by Mrs Quigley, the guardian ad litem and the parents themselves offers no prospect at this time or in the foreseeable future for change in the parents’ attitude or cooperation with Social Services. Reminding myself of the test to be applied by the court when considering the question of the likelihood of a child suffering significant harm as affirmed in Re H & Others [1996] 1 FLR p 80 – namely, is there a real possibility, a possibility that cannot be sensibly ignored, having regard to the nature and gravity of the feared harm in the particular case – and reminding myself too, of course, of the relevant date, I am satisfied that that condition is satisfied in the case of [J] and [C].”

    1. What are the arguments in this appeal, firstly, as to the two younger children? Mr Levy QC, who appears for the parents, has put forward the primary argument that there was no, or no proper, evidential foundation for the conclusion that J and C were likely to suffer emotional harm in the future. In particular, he argues, the judge’s finding that it would be “unsafe” for any child to be brought up in that household was a significant overreaction to the evidence. The only evidence of actual harm was to K. Mrs Alam had said that it was impossible to say for sure what caused her learning difficulties and developmental delay, and it has to be borne in mind that her mother’s intellectual abilities have not been recently assessed but had been assessed at a low level in the past. No real effort had been made to deal with the hostility towards her mother which had been expressed by K while she was in care. There was no real evidence of harm to CM, yet the reports seemed to assume that she too had suffered significant harm. There is nothing, he argues, to support the finding that the parenting of CM was beginning to go wrong. Yet from this it was sought to conclude that there was a likelihood of harm to both the babies under the test set out by Lord Nicholls in the case of re H. (That case is properly reported as Re H and Others (Minors) (Sexual abuse: standard of proof) [1996] AC 563 and the quotation referred to by the learned judge is at page 585F.)
    2. It has to be borne in mind, Mr Levy argues, that the “real possibility of harm”, which cannot “sensibly be ignored”, must be judged in the light of the nature and gravity of the harm which is feared. In this case the nature of the harm was harm to intellectual and emotional development at a later stage. Nor was the gravity anything comparable to the sort of gravity which warrants such immediate and strong action in other cases. So he argues that it cannot fall within the test of a serious possibility.
    3. He also argues that the finding ignores the context of the earlier problems with the older girls: the problems with the neighbours, the burglaries, the problems of the relationship, the fact that the mother did then develop symptoms of a mental illness. Now those problems are not present or not present to anything like the same degree that they were in 1996. The mother does not have any indications of any mental illness; she does not suffer from a personality disorder; whatever the difficulties in her relationship, she enjoys the consistent support of the father. She also enjoys the consistent support of her general practitioner and midwife and others. It has to be borne in mind, of course, that they do not have access to all the information to which the court has access. They have not read all of these papers. Nevertheless, they are people who see the parents on a more day-to-day and normal basis, and Dr Adey, the GP, has known the mother for a considerable time. His view, expressed in his statement to the court, sums up the case advanced by Mr Levy, in paragraph 6:

“I consider that it is totally inappropriate that [the mother] has had both her younger children removed into care at this moment in time. Since there is absolutely no evidence that either child has suffered any abuse and that the supposition is that emotional abuse may arise at a later date. There are, I am sure, many other children who are far more at risk than these two small children.”

    1. He also offers his own package of support for the parents. Hence Mr Levy argues that too much reliance should not be placed on the parents’ failure to cooperate with the social services, when other sources of help are available and in any event some of that failure to co-operate is based upon the mother’s sense of injustice as a result of the history I have related.
    2. Against those arguments, Mr Dugdale on behalf of the local authority is entirely right to point to the clear evidence which I have recited of harm to K, the clear evidence of K’s wishes and feelings, and the evidence of change and improvement in K while she has been in foster care. He also points out that there has been a very great deal of assessment in this case. Much of that assessment has been independent, and it is not merely speculative opinion on the part of the experts. Hence Mr Dugdale argues that, while the feared harm might not be immediate or even at the severe end of significant harm, the likelihood of its happening again is very high because of the mother’s failure to acknowledge any problems at all, and her unwillingness to work with the social services. He also points to a continuing pattern of separation and reconciliation in the parents’ relationship. The father may be a calming influence on the mother, but he is not consistently there.
    3. I am extremely tempted by Mr Levy’s argument that the evidence did not support a finding that there was here a real possibility of future harm “which cannot sensibly be ignored having regard to the nature and gravity of the feared harm.” The harm was not immediate and it was not of the gravest sort. A comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. However, much as I would like to do so, I cannot conclude that there was in this case no evidence which entitled the judge to take the view that there was a real possibility of future harm to these two children. Furthermore, she had had the benefit of seeing and hearing witnesses and observing the parents in court. But it does indeed appear that the judge in her conclusions overstated the effect of the evidence.
    4. Furthermore, that does not end the matter. The nature and gravity of the feared harm must be highly relevant to the action taken in response to it. That leads to Mr Levy’s second argument: even if the local authority can establish the likelihood of future harm in this sense, it cannot possibly justify in this case the early removal and complete severance of all ties between the children and their parents. Can it possibly be a proportionate response to what was feared in this case to remove the children for good, long before anything had been shown to have gone wrong?
    5. I have considerable sympathy for the local authority in this case. They had, in my view wisely, adopted a low profile in relation to J. They found themselves pushed by the guardian ad litem and the court into an application that they had not initially wanted to make. Once they had received Mr Williams’ report, it was obviously difficult for them to do anything other than make such an application. I also accept that there are cases in which the local authority is not bound to wait until the inevitable happens: it can intervene to protect long before that. But there has to be a balance. The cases where it is appropriate to do that are likely to involve long-standing problems which interfere with the capacity to provide even “good enough” parenting in a serious way, such as serious mental illness, or a serious personality disorder, or intractable substance abuse, or evidence of past chronic neglect, or abuse, or evidence of serious ill-treatment and physical harm. None of those was involved in this case. Nor can it follow that every case where there is any significant risk of harm to a young child should result in a care order in which the care plan is adoption. Again, one quite understands why this may be considered by the local authority to be the appropriate course of action because, if there is early intervention before problems have escalated, the chance of placing the child successfully for adoption are much increased. The prospects are much less favourable if the child remains and damage is in fact sustained.
    6. Nevertheless one comes back to the principle of proportionality. The principle has to be that the local authority works to support, and eventually to reunite, the family, unless the risks are so high that the child’s welfare requires alternative family care. I cannot accept Mr Dugdale’s submission that this was a case for a care order with a care plan of adoption or nothing. There could have been other options. There could have been time taken to explore those other options. Even as between those two, it is not necessarily the case that the care order was the better option than nothing. All of this needed serious consideration and dealing with in the judgment. I do not necessarily blame the learned judge – much depends on the way in which the case was presented to her – but all she says about the matter is this:

“I have applied the welfare check list and, after weighing all the evidence and the able submission of Miss Gilliatt, I have reached independently the conclusion that no other order, other than a care order in respect of both children, would provide them with a safe and emotionally secure childhood, with the potential to develop socially and emotionally without sustaining psychological damage. In those circumstances, I am compelled to approve the local authority’s care plan.”

    1. There are cases in which one can deal with the matter as shortly as that but, for the reasons I have tried to explain, that was not this case.
    2. I would have reached that conclusion without reference to the European Convention on Human Rights, but I do note that under article 8 of the Convention both the children and the parents have the right to respect for their family and private life. If the state is to interfere with that there are three requirements: firstly, that it be in accordance with the law; secondly, that it be for a legitimate aim (in this case the protection of the welfare and interests of the children); and thirdly, that it be “necessary in a democratic society.”
    3. There is a long line of European Court of Human Rights jurisprudence on that third requirement, which emphasises that the intervention has to be proportionate to the legitimate aim. Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.
    4. What therefore to do in connection with the two younger children? I am tempted simply to allow the appeal and discharge the orders in relation to J and C. In many ways that would be the best chance of this family restoring itself away from the stress which it has undergone in recent months, if not years. I would have had to do that, had I not been driven by the evidence to the conclusion that there was evidence which entitled the judge to find the threshold crossed. But the conclusion about the care orders and the care plan cannot stand. Furthermore, the children should never have been removed on an interim basis. That set the scene for all that followed. I would therefore, for my part, allow the appeal in relation to J and C, set aside the care orders – it follows that the other orders concerning them are also set aside – and remit the case to be heard again before a High Court judge. In the meantime, I would send the children home. I would make an interim supervision order, partly to ease the transition and partly because of the view that I have taken on the evidence.
    5. I would advise the local authority to think over the position carefully and to liaise with Dr Adey (and I would therefore give permission to disclose the papers, including the transcript of this judgment, to him) and to try and work out how they might seek discreetly to help this family. I would also say to the parents that they are going to have to accept help. They are going to have to acknowledge that there are concerns and they should try and do their best to understand them.
    6. I now have to say something that the parents will not like, and that is in relation to the two older girls. But I hope that what I have said about the two younger children will enable them to focus on the future of the two younger children and accept that, for the time being, what happened in relation to the two older girls is now too long gone. The permission to refuse contact with the older girls and the bar on future applications in relation to them go together. The judge’s reasons for that were basically that she was satisfied that K had sustained further harm through the contact. She was satisfied that the parents had not intended to cause any harm and had no perception of what their conduct meant to the security and well-being of their older children. There was evidence to support the conclusion that, though both girls had wanted contact back in 1997 when the care orders were made, they do not want it now. This comes, for example, from the guardian ad litem’s report of 29th March 1999. She reported that CM had initially been less adamant than K, but was now very clear. Each of them had reportedly been upset by the most recent chance encounters, K when she met her mother by chance in a shop in October and CM when the father came round with presents on her birthday. I know perfectly well how those occasions will appear to the parents. I know how hard it is for parents to be separated from their much-loved children and how much they want to express their feelings to those children. But, of course, sometimes these children are not yet ready to receive them. It is difficult to understand, but those who are in charge of looking after the children have to put the children’s interests first. And of course it does put the children in a difficult position, particularly if, as Mrs Alam picked up, they sense hostility from the foster carer.
    7. The parents are entitled to their feelings and to their suspicions, but the court has to put the welfare of the children first. It would be different if the order meant denial of contact for all time, but it is only permission to refuse contact. The local authority still has a duty under the Children Act Schedule 2, paragraph 15 to try to promote contact unless this is not reasonably practicable or consistent with the welfare of the children. But, given the clear evidence of problems with contact and the parents’ difficulty hitherto in understanding what those problems were, the order is not clearly wrong in principle.
    8. The same applies to the order under section 91(14). The guardian ad litem took the view that she should not continually be asking the children their views so, after her report in March of last year, she did not see them again. Both those girls have been the subject of proceedings almost continuously since 1996. The judge considered the guidelines set out by this court in the case of Re P (A Minor) (Residence Order: Child’s Welfare) [2000] Fam 15, at pages 37-38. She was entitled to take the view that the automatic six-month breathing space which is contained in section 91(17) is not enough, and that instead two years should be allowed. Furthermore, the parents are not completely shut out. It is open to them to seek permission, for example, by saying that they are now willing to talk to the local authority about how they could best and sensibly be in touch with those girls, at first on an indirect basis but with a view to possibly direct contact, if the girls’ attitudes change, and bearing in mind the local authority’s promise that it would arrange work with the girls to try and overcome K’s feelings about the situation. So it is always open to them to seek permission.
    9. For those reasons I would dismiss the appeals in relation to the older girls, but allow them in relation to the two younger children.
    10. SIR CHRISTOPHER STAUGHTON: I agree that this appeal must be allowed in part, and that the future of the two younger children should be remitted for reconsideration by a High Court judge. As to the two older children, the appeal should be dismissed. It is undesirable to say any more as to the reasons for our decision than has already been said by Lady Justice Hale.
    11. I feel a degree of caution as to the effect of Article 8 of the European Convention on Human Rights in this case, that being a territory which I have not yet entered. We heard no argument about it. I would express no view as to that until another day.

ORDER: Appeals allowed in relation to the two younger children and dismissed in relation to the two older children. Case remitted for reconsideration by the High Court. Time estimate three to four days. No order for costs. Transcript of these judgments and those of Judges Bennett, Howe and Groves to be prepared at public expense.
(Order not part of approved judgment) 

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