England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE CCFMI 96/0857/F

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CHICHESTER COUNTY COURT

(HIS HONOUR JUDGE BAKER)

Royal Courts of Justice

Strand

London WC2

Thursday 21 November 1996

B e f o r e:

LORD JUSTICE SIMON BROWN

MR. JUSTICE HOLMAN

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T (MINORS)

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(Transcript of Handed down judgment of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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MR. R WOOD QC & MS D BARNETT (Instructed by Messrs. William Macdougall & Campbell, Worthing) appeared on behalf of the Appellant

MR. S COBB (Instructed by Messrs Bennett Griffin & Partners, Worthing) appeared on behalf of the Guardian ad Litem

MR. M LIEBRECHT (Instructed by Legal Department, West Sussex County Council, Chichester) appeared on behalf of the Local Authority

J U D G M E N T

(As approved by the Court)

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©Crown Copyright

Thursday 21 November 1996

LORD JUSTICE SIMON BROWN: This is a mother's appeal with the leave of the judge below against the Order of Judge Michael Baker in the Chichester County Court on 10th April 1996 refusing her application to discharge a section 34(4) Order which he had earlier made on 16th December 1994 when making care orders in respect of all four of her children.

The appeal is confined to consideration of the middle two children only: S, born on 14th December 1985 who is now therefore 10, and B, born on 21st January 1989, now 7.

The chequered history of this family appears in the greatest possible detail from the papers before the Court. It makes, alas, sorry reading indeed. Suffice it for present purposes to pick up the story on 16th December 1993 when interim care orders were made for the three elder children and an interim supervision order was made for the youngest child, J. It was at this time too that S moved to foster parents, the Fs.

On 3rd September 1994 B too moved to the Fs. The move did not work out, however. Put shortly, both boys told of sexual misbehaviour including buggery between the three elder children. In October 1994 B was moved to new foster parents, and was excluded from school.

On 18th November 1994 the first respondent local authority applied for care orders and for leave to terminate contact between the parents, then still together, and the three elder children under the provisions of section 34(4) of the Children Act 1989. Those applications were the subject of a five day hearing before Judge Baker in December 1994. The information before the Court on that occasion was, so far as concerned S and B, essentially this. The local authority plan for S was that he be placed in the long term for adoption with no parental contact, a pre-adoptive placement to be identified at an early stage. The plan for B too was for an adoptive placement in the long term with no parental contact but with an initial residential placement for at least a year with intensive therapy. As to parental contact prior to placement the local authority planned a reduction. Mother had previously been enjoying two hours supervised contact twice per week with each child. This was planned to be reduced to one visit each two weeks for a month, then one visit per month for two months, then, if necessary, one visit each two months until the children were ready for their respective placements and a final contact. So far as the Guardian ad Litem was concerned, she recognised that S had a good understanding of his natural family but thought it probable that adoption would be in his best interests; she found it difficult to be sure about a future adoptive family placement for B until he had received therapy and his behaviour had become acceptable. She said:

"I have carefully considered the applications to refuse contact in respect of S, B ......... this has not been an easy decision to make at this stage. I am satisfied that the local authority will continue with their plans as presented, but situations do change; it may be more beneficial in the future for some form of contact to continue. However it may well become necessary to stop contact during any therapy that is undertaken, or indeed if there are problems with contact. The reviews will monitor this ........ I therefore also support the applications for permission to refuse contact in respect of S, B ........."

In giving judgment, Judge Michael Baker said this:

"In respect of S, he has been with foster parents for some time. Fortunately, ......... he appears to have settled well. He is less disturbed than A [the eldest child] or B, but clearly, from the history, he has gone through a traumatic childhood and what is of great cause for concern is the disclosures of buggery and that he learnt it from watching his parents. He also told the Guardian ad Litem that things had happened at home which he could not tell. ........ S had indicated that he was concerned about his own safety and the incident on the pier is no doubt indelible on his mind. [This was a reference to an incident in December 1993 when S suffered a broken heel by jumping off Worthing Pier.] I am satisfied that he has suffered significant harm due to the care, or lack of it, from his parents. I therefore make a Care Order.

In respect of B, he is a very disturbed child. The social worker said that he was so badly behaved she had difficulty in assessing him. He has alleged physical and sexual abuse by his brothers, and sexual abuse by his mother. He has been excluded from school and is now at a special school. I am satisfied that he has suffered significant harm due to the care, or lack of it, from his parents. I therefore make a Care Order......

In respect of contact matters, the local authority and the Guardian ad Litem argue that to enable the children to settle it is important for the local authority to be given the right to terminate contact, if it is thought necessary. That places a great responsibility on the local authority. The parents say that it is not necessary to do that, but it is right to maintain a link with the parents.

It is a difficult decision but the weight of evidence is in favour of the local authority. The alternative would be for the local authority to come back at the time when contact, it is thought, should be terminated. There should be flexibility about contact, particularly when the children are undergoing therapy, and it is not practical for the local authority to keep coming back to Court. I put my trust in the local authority to deal with it appropriately. Therefore the local authority have leave to terminate contact between the parents and S, B .........."

It is necessary now to indicate something of what happened to the children between December 1994 and April 1996 when the matter returned before Judge Michael Baker upon the mother's application made on 22nd August 1995. This application, one should note, was put in terms that Mrs T "wish [ed] to increase the present level of contact to S and B". As, however, Judge Baker observed at the outset of his judgment on 10th April 1996, the application had by then been amended to seek revocation of the section 34(4) order made in December 1994. I should further indicate that in March 1995 Mr and Mrs T had separated, Mr T having reached the view that the children should be given a new start in life without contact with him and, indeed, that the mother's application too should be opposed. Father played no part in this appeal.

On 20th January 1995 B had been placed in a small specialist residential children's home where he remains to this day. Following the making of the December 1994 Care Order, B had had two fortnightly sessions of contact with his mother, and thereafter supervised contact for one hour a month at a family centre. As to S, he had continued to live with the Fs until January 1996 when he moved to a new foster placement, the Js. It is convenient to note at this stage that as recently as 11th October 1996 S moved from the Js to yet further foster parents. S, like B, had two fortnightly sessions of contact following the making of the Care Order and then joined B in the monthly contact session. In April 1996 S was requesting more contact.

What, then, was the revised care plan for each child in April 1996? So far as S was concerned, although adoption had been approved by the local authority Adoption Panel on 11th July 1995, no suitable permanent placement had been found. Consideration was being given to finding him a therapeutic residential setting. The local authority were continuing to talk of "appropriate contact arrangements" for S, and their reports were directed to countering mother's application for increased and unsupervised contact. As to B, the local authority had on 9th February 1996 stated:

"Contact has been maintained at its present level for B's benefit and to give him a sense of continuity and reassurance during a period of his life when he is in transition and when he does not yet have new parental relationships to which he can commit himself. I think that four weekly contact is adequate for this purpose: more frequent contact will confuse and unsettle B, and an increase in frequency at this point would give him a very misleading message about the future and one which I think he would find disturbing...... Our eventual aim will be to terminate contact when we are closer to planning a move to a permanent family. It is impossible at this moment to predict precisely when this stage will be reached. Before contact is terminated it may well be helpful to reduce its frequency. Quite apart from the progress of the adoption plan it may also become necessary to reduce the frequency of or to terminate B's contact in order to meet his developing emotional and therapeutic needs."

By the date of the hearing, we are told, the local authority had in fact suspended contact between mother and B with a view to final termination.

The Guardian ad Litem concluded her report of 1st April 1996 thus:

"It remains essential for the local authority to have the ability to alter the contact arrangements according to the needs of the children and if necessary to terminate contact. I cannot support this application by Mrs T."

Although the matter was listed before Judge Baker for a two day hearing, with witnesses in attendance, as an application by mother for increased contact to S and B (and, indeed, J), mother withdrew her application in relation to J and, as stated, amended her application relating to S and B to one seeking the discharge of the section 34(4) order made sixteen months previously.

What appears to have been argued on mother's behalf was essentially that the local authority's care plan for both boys had changed and that it was no longer appropriate to leave to the local authority the decision as to when contact with mother should cease. So far as S was concerned, the local authority was reconsidering the whole question of his adoption and wondering whether perhaps there should be instead a therapeutic residential placement, as in B's case. As for B himself, he was still at the residential children's home with no adoption placement in sight.

Faced with this argument, the Judge had first to decide what should be his approach to an application for the discharge of a section 34(4) order. The authority from which he appears to have derived most assistance was Re B (Minors) (Care: Contact: local authority's Plans) [1993] 1 FLR 543, and in particular this passage from Butler-Sloss LJ's judgment at page 552:

"......[the local authority's] plan has to be given the greatest possible consideration by the court and it is only in the unusual case that a parent will be able to convince the court, the onus being firmly on the parent, that there has been such a change of circumstances as to require further investigation and reconsideration of the local authority plan."

Directing himself in accordance with that approach the Judge then considered the position of each child. As to B, he said this:

"He is undergoing, or about to undergo ....... an intensive therapeutic programme. Whereas there is little evidence, medical evidence particularly, to support this view, Mr Martin, the social worker, indicates in his report that it may be necessary to reduce the frequency of, or to terminate, B's contact with his mother in order to meet his needs. That is quite apart from the consideration of adoption in the long term. ......... It would not, in my view, be appropriate to remove the local authority's powers to terminate simply because no adoption placement is yet available. For all I know a placement may be found quite soon. In that event the local authority would have to return to court to apply again if mother's application today was successful. I said in my judgment in December 1994 that I was prepared to rely on the ....... good sense and integrity of the local authority, advised as they always are in these matters by experts. I still am. If there are no plans for placement in the immediate future then, subject to the other consideration to which I have referred relating to B's therapy, I am sure that the local authority will continue contact. This is not, as has been suggested by [mother's counsel] an abrogation of the court's powers to regulate contact; it is an exercise of those powers by the court to vest in the local authority the right to make decisions in the best interests of the child and I agree with [counsel for the Guardian ad Litem] that to remove the right to refuse contact with the local authority and thus to require them to afford reasonable contact with the mother might very well put the local authority in a difficult position in regard to B's therapeutic programme and adversely affect that programme. I am not prepared to risk that."

So far as S was concerned, the Judge said that the fresh possibility of "some kind of therapeutic residential placement ....... does not, in my view, constitute such a fundamental change as to require consideration of the local authority's care plan. The local authority still needs to regulate and monitor contact and, if necessary, to terminate it."

By way of overall summary the Judge said this:

"The position is that in December 1994 I carefully considered the question of whether this was an appropriate case for authorising the local authority to terminate contact and I decided that it was. The onus is now on the mother to satisfy me that there has been such a change in the circumstances that I should reverse that decision. I am not so persuaded and, therefore, I refuse the application."

In the event no evidence was called and the hearing lasted less than a day.

Mr Roderick Wood QC, counsel appearing for mother on this appeal, seeks to criticise the Judge's approach in a number of ways. Firstly he submits that the section 34(4) order should never have been made in the first place: the local authority's care plans at that stage, he argues, were not sufficiently advanced to justify such an order. In the result, he contends, the Judge ought certainly to have revoked it when the opportunity arose upon mother's application sixteen months later.

The immediate, and to my mind insuperable, difficulty faced by this argument is, of course, that it seeks to undermine the April 1996 decision by way of a challenge to the underlying order which was itself never appealed. For my part, I think it right to approach the 1996 decision - that presently under appeal - on the footing that the original section 34(4) order was properly made. In any event, for reasons I shall explain later, I think the 1994 decision justifiable.

How, then, should the Judge have approached the application to discharge that order? That is the novel question raised by this appeal, a question not apparently the subject of earlier authority.

Clearly the correct starting point for the determination of this question must be a consideration of the circumstances in which it is appropriate to make a section 34(4) order in the first place.

As to this, Mr Wood invited us to give general guidance and more particularly an endorsement of his submission that a section 34(4) order will only ever be appropriate in three particular situations:

" (i) Where not to make such an order would thwart the local authority plans for the care and upbringing of the child made pursuant to the provisions of the care plan before the court on the making of the care order, and where those plans are imminently to be put into effect.

(ii) Where the nature and quality of the contact is such that it is not in the interests of the child for it to continue.

(iii) Where the relevant named person in the order cannot be found."

For my part I would resolutely decline both limbs of this invitation. As to general guidance, one must note this passage from the judgement of Sir Stephen Brown P, in Re E (a Minor)(Care Order: Contact) [1994] 1 FLR 146 at 153:

"The Court has been very strongly pressed by Mr Harris in particular to give what he termed "guidance" on section 34 of the Children Act 1989. I do not consider it appropriate to say more than that this case endorses the approach indicated by Butler-Sloss LJ in the case of Re B (above) emphasising that contact must not be allowed to destabilise or endanger the arrangements for the child."

Where the President himself has feared to tread it would be foolish indeed for us to rush in.

As for Mr Wood's tripartite proposition, that too I would reject as unhelpfully rigid and restrictive. What is meant by "imminently" in (i)? The form of (ii) suggests that the requirement for a final termination of contact there is even more immediate than "imminent". As for (iii) it would be necessary to read into that the further postulate that if such person were suddenly to appear it would be necessary to prevent contact with the child.

Perhaps the greatest help on this part of the case is to be found in Butler-Sloss LJ's judgment in Re L (Sexual Abuse: Standard of Proof) [1996] 1 FLR 116. Not, however, from the first of the two passages on which Mr Wood sought to rely, namely:

"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 residence or contact to the child, the powers of the court and the exercise of discretion under s 1 are restored for the duration of the application. If the care order remains in place, other than by control over contact by virtue of the provisions of s 34, the court has no further part to play in the future welfare of the child: see Re B (Minors) (Care: Contact: local authority's Plans) [1993] 1 FLR 543 at p 548. This interchange between the judicial control of children, the subject of applications, and the local authority responsibility 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."

That passage appears in the part of the judgment dealing with, and indeed upholding, the Judge's decision there to make a final care order as opposed to a series of interim care orders. There may be some broad analogy between the court's position when deciding respectively whether or not to make a final care order and whether or not to make a section 34(4) order: each decision in its different way alters the balance between the court and the local authority in the control of the child. The above passage, however, in no way helps identify the point at which, or the circumstances in which, a section 34(4) order should be made.

Rather the helpful passage in Re L is the following, under the heading "Contact":

"The Guardian ad Litem asked for an order to be made under s34(4), authorising the local authority to refuse to allow contact between the children and the family, although the local authority did not seek such an order. The judge said:

"It seems to me on balance I ought to accede to Mr Tolson's submission because, as I see it, it can do no harm if the county council do not wish to terminate contact and on the other hand if there should arise an occasion where, for whatever reason, whether it be the destructive behaviour of the children or whatever, their professionals come to the conclusion that contact ought to be refused then it can be done without further application to the court, because I cannot foresee that there would be any evidence before the court on that occasion which the guardian has not put forward today, so I am prepared to make that order."

"The order giving leave to terminate contact was contrary to the local authority's present intentions and to the indications made by the judge as to the possibility of rehabilitation. Section 34(1) requires a local authority to allow the child in care reasonable contact with his parents unless by s 34(4) the court authorises termination of such contact. A s 34(4) order in our view is appropriate where there is no likelihood of rehabilitation and the child is, for instance, to be placed for adoption or with foster-parents without continuing contact with the natural family. In the context of this case it was surprising that a s 34(4) order should be made and to do so to save a further application to the court if the circumstances should change had the effect of handing over to the local authority the residual responsibility still vested in the court. It was premature to make an order which was not to be implemented in the foreseeable future."

With the aid of that passage one reaches this position: a section 34(4) order should not be made:

(a) whilst there remains a realistic possibility of rehabilitation of the child with the person in question, or

(b) merely against the possibility that circumstances may change in such a way as to make termination of contact desirable. For an order to be justified, a probable need to terminate contact must be foreseeable and not too remote.

Beyond that it seems to me impossible to go.

I may say that on that approach I for my part would regard the orders made here by Judge Baker in December 1994 as having been justifiable given in particular that there appeared not merely the need to prepare the boys for long-term closed adoption but also the possible need to end contact during therapy, at any rate in B's case. The position here was certainly very different to that in Re L and the plans more advanced. And there was, of course, no possibility of rehabilitating either child with mother, as, indeed, she herself has now come to accept.

Given that the above is the correct approach to the making of a section 34(4) order in the first place, in what circumstances should it be discharged? More particularly, what, if any, inhibitions are there upon a person's entitlement to seek such discharge?

In answering this question it is necessary first to note the following features of the section 34 scheme:

(i) All applications under section 34 must be decided by reference to section 1(1) and the welfare checklist in section 1(3) - see section 1(4)(b) (section 34 being in part IV of the Act).

(ii) Prima facie a child in local authority care should be allowed reasonable contact with, amongst others, his parents - see section 34(1). The local authority's obligations, indeed, go further: paragraph 15(1) of schedule 2 to the Act provides:

"Where a person is being looked after by a local authority, the authority shall, unless it is not reasonable or consistent with his welfare, endeavour to promote contact between the child and (a) his parents ......"

(A child in local authority care is by definition "being looked after" by them - see sections 105(4) and 22(1)).

(iii) How much or little contact is "reasonable" must be for the local authority to decide subject to any order of the court - and the local authority's duty under schedule 2 to "promote" (i.e. encourage and facilitate) contact arises only if and insofar as they perceive this to be consistent with the child's welfare. Bearing in mind, however, that even in cases of urgent necessity section 34(6) permits only refusal of contact for up to seven days, it may be thought that reasonable contact should not ordinarily be unduly restricted unless by agreement or pursuant to court order - for which, of course, the local authority itself may apply under section 34(2).

(iv) Under section 34(3) a "named person", including a parent, can apply for contact, or increased contact, at any time. Logically, however, if a section 34(4) order is in place - whether or not the local authority has then actually made use of it to refuse contact - any such application would need to be coupled with an application under section 34(9) for the discharge of the section 34(4) order.

(v) The only express statutory restriction upon the making of any kind of section 34 application is that provided by section 91(17) of the Act:

"Where -

(a) a person has made an application for an order under section 34;

(b) the application has been refused; and

(c) a period of less than six months has elapsed since the refusal,

that person may not make a further application for such an order with respect to the same child, unless he has obtained the leave of the court."

With those considerations in mind, I turn now to consider what should be the Court's general approach to a section 34(9) application for the discharge of a section 34(4) order.

Clearly such an application must be considered by the court, and considered indeed with the child's welfare in mind as the paramount consideration - save only in the very limited circumstances provided for by section 91(17) when the Court's leave is required.

That said, it is plain that there must be demonstrable some material change of circumstance between the making of the section 34(4) order and the application to discharge it: the courts are obviously entitled to screen out what are essentially no more than disguised appeals against the original orders.

How much help, then, is to be derived from the passage which I have already cited from Butler-Sloss LJ's judgment in Re B - the passage relied upon by the Judge below? To my mind, in this context very little. In the first place one must bear in mind the very different situation which the court was there considering: a particular category of care case in which a parent applies for contact with a view to rehabilitation. Butler-Sloss LJ was not speaking in the context of an existing section 34(4) order, let alone an application to discharge such an order. Secondly, the formulation in any event appears, perhaps unavoidably, to beg more questions than it raises: "...... such a change of circumstances as to require further investigation and reconsideration .....". How much change is "such a change", and what precisely is encompassed within a requirement for "further investigation and reconsideration" (in that case, of the local authority plan, in this case of the desirability of the local authority retaining their section 34(4) authorisation to terminate contact)? This second question seems to me of equal importance to the first. As Butler-Sloss LJ said in Re B (Minors) (Contact:) [1994] 2 FLR 1 at page 5:

"[Counsel] argued that ...... a judge is obliged to hold a full hearing, permitting the parties to call oral evidence and cross-examine any witness they may choose. In my view a judge in family cases has a much broader discretion both under the Children Act 1989 and previously to conduct the case as is most appropriate for the issues involved and the evidence available (see the judgment of Sir Stephen Brown in W v Ealing London Borough Council [1993] 2 FLR 788). There is a spectrum of procedure for family cases from the ex parte application on minimal evidence to the full and detailed investigations on oral evidence which may be prolonged. Where on that spectrum a judge decides a particular application should be placed is a matter for his discretion. Applications for residence orders or for committal to the care of a local authority or revocation of a care order are likely to be decided on full oral evidence, but not invariably. Such is not the case on contact applications which may be and are heard sometimes with and sometimes without oral evidence or with a limited amount of oral evidence."

The judgment in the Ealing case had cited a dictum of Balcombe LJ - "..... this is not ordinary civil litigation: it concerns children" - and continued thus:

"In our judgment that is a salutary observation and it would be unwise in this jurisdiction to seek to restrict the discretion of the court by imposing a rigid formula on the conduct of proceedings."

Applying these considerations to an application to discharge a section 34(4) order, I conclude that the Court should initially have two main interlocking considerations in mind: first, the extent to which circumstances have changed from when the order was originally made; and second, bearing those changes in mind, the extent to which it now seems appropriate to reinvestigate the central question. The court should ask itself: where on the "spectrum of procedure" should this particular application be placed? Clearly the greater the apparent change in circumstances, the more intensively will the court be prepared to reconsider the desirability of leaving the section 34(4) order in place.

I would not myself speak in terms of the onus being on the applicant. But it should certainly be borne in mind that there are clear implications in all this not merely for the best use of court time but more importantly for the welfare of the children themselves. Children are often aware of the court's processes and troubled by the uncertainty and disruption engendered. Nor should the courts be expected to welcome applications which essentially seek to reopen already decided questions.

Let me now return to consider the present appeal on its own facts. As stated, so far as B was concerned, by April 1996 contact had in fact ceased. True, he remained at the children's home with no adoption placement in sight, but plainly the care plan for him had not changed and, indeed, realistically it was substantially further advanced than when the section 34(4) order had first been made. In those circumstances there could in my judgment be no sound basis whatever for suddenly discharging that order; quite the reverse. The only basis for arguing the contrary would be if mother's real case was that she wanted to prevent the local authority from terminating contact and needed the section 34(4) order discharged to achieve that - if, in short, her real case was under section 34(3) to which the section 34(9) application was ancillary. It is apparent that was not how Judge Baker understood the case being advanced at the hearing. For my part, however, even if mother's application to maintain contact with B had remained four-square before the court, I entertain no doubt that the Judge would have dismissed it, and dismissed it moreover without thinking it necessary to hear oral evidence in the case. Nor do I think he could have been faulted in such an approach. The basic fact here is that the local authority now have B in their care. The responsibility for him is properly and essentially theirs. That is so not least whilst he is undergoing therapy as at present. I think the Judge was well entitled to leave the question of B's contact, as expressly he did, to the "good sense and integrity of the local authority, advised ..... by experts". I would dismiss the appeal so far as it concerns B.

I turn to S with regard to whom a very different situation arises. It was different already by the date of the hearing before Judge Baker. It has become more so since. As stated, already by April 1996 the local authority were reconsidering the whole question of S's adoption. As matters now stand, however, we are told not only that no longer is an adoption placement being sought but that funds are presently unavailable even for a therapeutic residential placement. Only now are S's needs for therapy being assessed and it is unclear when, if at all, therapy will begin. In these circumstances the local authority themselves express: "the view that it is no longer likely that circumstances which will warrant a refusal of contact will prevail in the foreseeable future in relation to S. Accordingly the first respondent would accede to the discharge of the grant of leave to refuse contact between the appellant and S".

The Guardian ad Litem argues a different view and invites us to leave the section 34(4) order in place. True, submits Mr Cobb, there is no longer a plan for S's long-term adoption. But a countervailing consideration has now come into play, namely the real possibility that S's therapeutic needs will quite soon make it desirable to end contact in his case too.

I, for my part, would unhesitatingly reject the Guardian ad Litem's invitation and would discharge the section 34(4) order in S's case, leaving it to the local authority to reapply for a further such order if and when they find they actually need it. In these circumstances I think it unnecessary to reach any view upon the justifiability or otherwise of Judge Baker's decision, on the facts before him, to leave the section 34(4) order in place in S's case. Suffice it to say that the argument for its discharge was clearly stronger in his case, even on the facts as then known, than in B's.

In the result, I would allow this appeal to the extent of discharging the section 34(4) order in S's case but not otherwise.

MR JUSTICE HOLMAN:

I agree with all that my Lord has said as to the proper approach of the court on an application under Section 34 (9) to discharge an earlier order under Section 34 (4), and summarise my views as follows :-

1. It is not appropriate on such an application to reinvestigate whether the original order was appropriately made in the circumstances prevailing when it was made. Indeed the court must be astute to see that the application made under Section 34 (9) is a bona fide application to discharge, and not a disguised attempt to appeal, the earlier order. To this extent, but only to this extent, there is an onus on the applicant to show, as a threshold test, that there has been some change of circumstances such that the application is a genuine application made in the light of those changed circumstances. There is no greater threshold test since the discretion in Section 34(9) is unqualified and there is no statutory restriction on the right to apply unless Section 91 (17) applies. The inquiry at this stage should not be elaborate and, indeed, one would often expect the point to be conceded.

2. Once that threshold is passed, the duty of the court is to apply the tests in Section 1 (1), (2), (3) and (5) of the Children Act. I agree with my Lord that we should not attempt to lay down any guidance save to say that it could not be right to make an order under Section 34 (4), nor subsequently to leave one in place, unless at the time the court is considering, or re-considering the matter : (a) there is no realistic possibility of rehabilitation of the child with the person in question; and (b) a probable need to terminate contact is foreseeable and not too remote.

3. A judge hearing an application to discharge is entitled to, and indeed must, consider where on the "spectrum of procedure" described by Butler-Sloss LJ in Re 'B' (Minors)(Contact) [1994] 2 FLR 1 at 5G the particular application should be placed. If that question arises at an interlocutory hearing, then the sort of considerations referred to by Butler-Sloss LJ at page 6 A-D are likely to be relevant.

4. Like my Lord, I doubt whether it is helpful to speak in terms of onus once the threshold to which I have referred in paragraph 1 above is passed. If, exceptionally, the court considers at the conclusion of the inquiry that the factors are so evenly balanced as not to come down one side or the other on the question of discharge, then I, for my part, would consider that the order should be discharged. If an order under Section 34 (4) cannot be justified, it should not remain in force.

5. Clearly, orders under Section 34 (3) and Section 34 (4) cannot logically co-exist (unless, unusually, there is an order for contact for a limited period under Section 34 (3) coupled with an order under Section 34 (4) to take effect at the end of that period). But I see no reason why an application under Section 34 (3) cannot be considered together with an application under Section 34 (9) for the discharge of an order under Section 34 (4), at any rate once the threshold referred to in paragraph 1 above is passed. Once the threshold is passed, the issues under Section 34 (3) and Section 34 (4) need to be considered together and in the round. If the court concludes that there should be a positive order for contact under Section 34 (3), then, save in the unusual situation mentioned above, it will logically discharge the Section 34 (4) order. But the Section 34 (4) order does not have to be got out of the way before the court can consider Section 34 (3).

I now turn to the facts of the present case. So far as S is concerned, the Local Authority themselves now effectively ask that the Section 34 (4) order be discharged since they recognise that a probable need to terminate contact in the foreseeable future no longer exists. Like my Lord, I am not persuaded that the arguments of the guardian ad litem should prevail, and it would be ridiculous if the Local Authority now had to make a fresh application to a judge for the discharge of the Section 34 (4) order. I would allow the appeal and discharge the order in relation to S.

I have found the position of B much more difficult. By her application under Section 34 (3) dated 22nd August 1995, the mother herself clearly asked for a definition of (and she hoped an increase in) her contact. At the hearing, this was orally amended to an application simply for the discharge of the Section 34 (4) order and I must, therefore, assume that this reflected the mother's then-position; although I have an uneasy feeling that it more reflected some confusion as to the proper legal approach to the situation as I have endeavoured to explain it at paragraph 5 above.

In passages which my Lord has quoted, the judge himself approached the question as one of onus rather than as an application of the tests in Section 1 of the Children Act. In my judgment, he erred in doing so. Further, at page 4 F-G of the transcript the judge said:

"If there are no plans for placement in the immediate future then, subject to the other considerations to which I have referred relating to B's therapy, I am sure that the Local Authority will continue contact."

That passage does not lie easily with the fact that by the date of the hearing the Local Authority had in fact already terminated the contact, in reliance upon the Section 34 (4) order. However we were assured by the Bar, including counsel for the mother, that the judge was well aware that contact had indeed already been terminated.

The two pre-requisites to which I have referred in paragraph 2 above were certainly satisfied in that (a) the mother herself had accepted that there was no prospect of B returning to live with her; and (b) contact had in fact been terminated. The essence of the judge's decision is, I think, at page 5 A-B of his judgment:

"I agree with [counsel for the guardian ad litem] that to remove the right to refuse contact from the Local Authority and thus to require them to afford reasonable contact to mother might very well put the Local Authority in a difficult position in regard to B's therapeutic programme and adversely affect that programme. I am not prepared to risk that."

That was a conclusion based on welfare and I agree with my Lord that even if the judge had approached the application on the correct legal basis, and even if the mother's application under Section 34 (3) for a definition of contact had remained four-square before the court, the conclusion of the judge would have been the same. Further, it is a conclusion which he was entitled to reach on the evidence.

I do have misgivings that the mother's original application for contact did not receive the direct consideration that it was entitled to. But I am not persuaded that the wrong result has been reached for B. So I, too, would dismiss the appeal insofar as it concerns B.

Appeal allowed in part; Legal Aid Taxation