Local authority wins Court of Appeal challenge over interim care order requiring it to arrange direct contact between mother and daughter

The Court of Appeal has allowed an appeal brought by a local authority against a judge’s direction that the council should facilitate interim direct contact between a young girl and her mother.

In T, Re (Interim Care Order: Arrangements for Contact) [2024] EWCA Civ 469, Mr Justice Cobb, who heard the case with Lady Justice King and Lady Justice Nicola Davies, concluded that His Honour Judge Greensmith “failed to explain sufficiently or at all” why it was that he felt it appropriate to act by imposing direct contact before acquiring a proper understanding of T's resistance to contact with her mother.

The case concerned a young girl, T, aged three and a half.

Outlining the background, Mr Justice Cobb said that T’s mother had reported her former partner (Mr A) to the police, alleging that he had sexually abused T, some twenty months earlier.

She supported her allegation by showing the police a sexually explicit photograph stored on her mobile phone, and handed her phone to the police for analysis. That analysis revealed the presence of a second, recently deleted, photograph, taken a matter of minutes before the photograph implicating Mr A, which allegedly also implicated the mother. Potentially incriminating text messages were also discovered, Mr Justice Cobb judge noted.

The mother and Mr A were charged with three offences. The mother is due to stand trial in relation to the alleged offences later this year.

On the arrest of her mother, T initially stayed with her maternal great grandmother before moving to her maternal great aunt, where she continues to reside.

In February 2024, the local authority issued an application for a care order. The Court of Appeal judge noted that by the time of the first hearing, the local authority had taken “no steps to facilitate any contact between T and her mother”.

At a hearing later that month, HHJ Greensmith made a case management order which contained a number of recitals, one of which required the local authority to arrange direct (i.e., face-to-face) contact three times per week between T and her mother.

The local authority confirmed that in relation to contact;

1. Preparatory work with [T] would take place 4th March 2024;
2. There will be a supervised FaceTime [videocall] call between [T] and the mother 6th March 2024
3. Direct contact will commence 8th March 2024, which from 11th March 2024 will be 3 times per week;
4. The local authority shall actively review the contact arrangements and will ensure that the mother is kept informed of the child's welfare".

Mr Justice Cobb said: “In accordance with the agreement recorded above, T was prepared for contact, and indirect contact (by videocall) took place on 6 March 2024. This contact was, in the view of the Local Authority, not successful; the notes of the contact refer to T as scared and tearful, she was resistant to seeing her mother, and asked repeatedly for the contact to end.

“Accordingly the Local Authority decided to defer the planned introduction of direct (face-to-face) contact, and arranged further contacts by videocall on 12 March and 19 March 2024.”

Mr Justice Cobb said there was some dispute about the success of these later contact sessions: "it is the Local Authority's case that the contacts had been difficult and T had continued to be resistant to see and/or engage with her mother. On the 12 March 2024, T is reported to have referred to her mother several times as 'naughty', and called her a 'monster' and a 'dinosaur'. The mother's case is that the contacts were improving in quality, and that by 19 March 2024, T was in fact unhappy about the contact coming to an end."

Given its assessment that the contact was proving “distressing” for T, the local authority issued a formal application for an order under section 34(4) CA 1989. The grounds for the application were expressed as follows:

"Since the last hearing the Local Authority has facilitated three FaceTime [videocall] contact sessions between [T] and her mother. [T] has been resistant to attending contact and has been distressed following contact. In light of this the Local Authority wish to continue with weekly FaceTime [videocall] contact at this time and believe that to rush progressing contact would have an adverse impact on [T]."

A further case management hearing took place on 22 March 2024, which was “largely dedicated” to the issue of contact.

The positions of the parties on the issue of interim contact at the hearing were summarised by Mr Justice Cobb as follows:

i) The local authority were inviting the court to approve an arrangement for continued videocall contact once per week for the reasons rehearsed in the social worker's statement and in the 'Legal Framework' document; the social worker wished to undertake further work with T to understand her resistance to contact, and her perception of her mother as 'naughty'.

ii) The mother aspired to face-to-face contact at least twice per week but in pre-hearing discussions had reached a compromise agreement with the local authority that the contact for the time being could remain as videocall contact; there was a dispute as to frequency. However, during the hearing, she changed her position and sought immediate direct contact.

iii) The Children's Guardian was supportive of the local authority in its application to limit the contact to once per week by videocall.

Turning to the ruling under appeal, Mr Justice Cobb noted that in the first part of the ruling HHJ Greensmith said:

"I think the starting point here has to be that to all intents and purposes an order has been made for contact. Now, I'll say very clearly, that if the Local Authority is incapable of complying with that order an application should have been made to court.”

In light of the first point made in the ruling, counsel for the local authority reminded HHJ Greensmith that the local authority had in fact issued an application under section 34(4) CA 1989.

The Court of Appeal judge observed that the judge “plainly had not seen the application, and appeared to be unaware of it”.

The judge was taken to it on the online portal, and then briefly considered it.

HHJ Greensmith said: “If, after 14 days, the Local Authority forms the view that it would not serve the child's welfare because the attempts to secure contact are causing the child adverse trauma, then the Local Authority is invited to bring the matter back to court”.

The order which was generated following the hearing contained the judge's direction in relation to contact.

The recitals read as follows:

"(f) The court stated that the recordings (b) and (c) of the previous order were equivalent to orders of the court - in this instance - an order for contact. The order had accordingly not been implemented, and the order should now be implemented as it had not been rescinded.

(g) The local authority's application for a section 34(4) [order] was adjourned pending further consideration of the court. In giving a short extempore judgment, the court stated that contact could not progress on the basis the child had said 'no' and that the stage had not been reached in deciding direct contact could not take place.

(h) Further, the court reiterated that direct contact did not include video recordings, the direct contact ordered was contact that did not have any form of digital interface.

(i) Direct should commence no later than Tuesday 2nd April 2024."

Appealing the order, the local authority challenged the ruling in three material respects:

i) HHJ Greensmith failed to conduct a child-focused welfare review of contact prior to making his order for direct contact. He was further wrong to adjourn the section 34(4) CA 1989 application without considering it on its merits;

ii) The judge fell into error in elevating the status of the recital in the 27 February 2024 order to a court order, and treated the issue of contact as one of enforcement, not welfare. The judge had wrongly concluded that by not moving to direct contact, the local authority had in effect breached his order;

iii) The judge had dismissed, or at least had failed to have proper regard to, the distress of T in relation to the contact given the grave allegations of abuse, without seeking to investigate, or allow time for a further investigation of, the reasons for her distress. The judge had dismissed the local authority's plan to undertake further work with T to understand why she was "adamant" that she did not want to see her mother, and why she referred to her as "naughty".

The Children's Guardian supported the local authority in its appeal.

Discussing the appeal, Mr Justice Cobb concluded that the judge's ruling was “fundamentally flawed, as much for what the Judge does include within it, as for what he omits to address”.

He noted that the judge's first point (that an application should have been made to court), “plainly falls away” given that the local authority had indeed made an application in relation to contact.

Further, Mr Justice Cobb found the ruling to be “inherently contradictory” in raising a question mark about T's distress at contact, while also contemplating the need to "get to the bottom" of her distress; and separately appearing to find that T is indeed "very distressed" by the contact which has taken "a lot of effort to achieve".

Mr Justice Cobb said of the judge: “His proposal for 'close' or 'heavy' supervision of contact failed to appreciate that the risk was, in this context and at this stage, of emotional harm to T by the imposition of direct contact, not physical or sexual harm.”

He added: “Just as in the case of Re A [2013] EWCA Civ 543, the Judge failed to explain sufficiently or at all why it was that he felt it appropriate to act by imposing direct contact before acquiring a proper understanding of T's resistance to contact with her mother. In those circumstances, it seems to me that his decision was at best premature.”

Allowing the local authority’s appeal, Mr Justice Cobb concluded: “The Judge's direction that the Local Authority should facilitate interim direct contact between T and her mother at this stage was, in my judgment, wrong, and cannot stand.

“It follows that it is no longer necessary for the disposal of this appeal to determine whether the Judge was also wrong to elevate the recital containing the contact provisions in the 27 February 2024 order to the status of an enforceable order, with which the Local Authority had not complied.”

Given the dispute in the appeal about the use and import of recitals, Mr Justice Cobb highlighted an extract from the 'House Rules' (May 2023) “to avoid confusion in the future”:

"[3] Recitals in a children order shall appear at the end of the order. Recitals must only record necessary information, drafted in as short and neutral a manner as possible. They should not record what happened in the hearing and should be limited to essential background matters which are not part of the body of the order. Any purported views of the court which did not form part of the court's decision should not be recited. The recording of a party's position before, during, or after the hearing as a recital should cease unless the standard order template requires such information.

[9] … Where possible, and in any event as provided in the standard order templates, recitals in children cases should appear in a schedule to the order."

In his final remarks, Mr Justice Cobb noted: “Finally, I am of the view that the Judge was not in fact wrong to adjourn the application for an order under section 34(4) CA 1989. As the Local Authority had merely wished to 'restrict' contact in the interim to indirect contact (see §14 above), it is arguable that it should more appropriately have issued an application under section 34(2) CA 1989. In any event, as it was no part of the plan of the Local Authority to refuse contact between T and her mother at this stage, and did not intend to implement the power afforded to it under section 34(4) CA 1989 for the foreseeable future, it would have been premature for the Judge to accede to the application”.

Lady Justice Nicola Davies and Lady Justice King agreed.

Lottie Winson