United Kingdom House of Lords Decisions

Judgment: 16 December 1993




HOUSE OF LORDS




BIRMINGHAM CITY COUNCIL
(RESPONDENTS)

v.

H. (A.P.) (A MINOR)

(APPELLANT)

AND OTHERS

(RESPONDENTS)




Lord Keith of Kinkel
Lord Jauncey of Tullichettle
Lord Browne-Wilkinson
Lord Slynn
Lord Hadley
Lord Woolf




LORD KEITH OF KINKEL

My Lords,

For the reasons given in the speech to be delivered by my noble and
learned friend, Lord Slynn of Hadley, which I have read in draft and with
which I agree, I would allow this appeal.

It is desirable that something should be said about the level of separate
representation of parties, all at public expense, which was a feature of this
appeal. The appellant proceeding through his guardian ad litem was
represented by solicitors and by senior and junior counsel funded by the Legal
Aid Board, and rightly so. Birmingham City Council, which supported the
appeal, was similarly represented, at the expense of the Birmingham
community charge or council tax payers. Separate solicitors and also senior
and junior counsel appeared for each of the mother, the father and the
guardian ad litem to the mother. These three had lodged a joint written case.
The mother and the father were funded by the Legal Aid Board, and the
mother's guardian ad litem by Birmingham City Council. There was no
significant difference between the arguments for those who supported the
appeal or between the arguments for those who resisted it. In the
circumstances there must be a serious question whether the degree of separate
representation was necessary, or in any event whether the employment of so
many senior counsel was justified. It is to be hoped that in future cases where
a similar question may arise serious consideration will be given by solicitors
and counsel to the practicability and desirability where appropriate of securing
joint representation with a view to minimising the burden on public funds.

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LORD JAUNCEY OF TULLICHETTLE

My Lords,

I have had the advantage of reading in draft the speech prepared by my
noble and learned friend, Lord Slynn of Hadley. I agree with it and for the
reasons he gives I too would allow the appeal.

LORD BROWNE-WILKINSON

My Lords,

For the reasons given in the speech prepared by my noble and learned
friend Lord Slynn of Hadley, with which I agree, I too would allow the
appeal. I also agree with the comments made by my noble and learned friend.
Lord Keith of Kinkel.

LORD SLYNN OF HADLEY

My Lords,

This Appeal raises a question relating to the court's jurisdiction to
authorise a local authority to refuse contact between a child in care and
another person when that other person, in this case the child's mother, is also
a child in care.

Under the Children Act 1989 ("The Act") "child" for all purposes
relevant to the present Appeal means a person under the age of 18.

By section 17 of the Act it is the general duty of every local authority
to safeguard and promote the welfare of children within their area who are in
need, and, so far as is consistent with that duty, to promote the upbringing of
such children by their families by providing appropriate services.

Pursuant to section 31 of the Act, a local authority may apply to the
court for an order that a child be placed in the care of a designated local
authority if the child is suffering, or is likely to suffer, significant harm and
if the harm, or likelihood of harm, is attributable to the care given or likely
to be given to the child, being not what it would be reasonable to expect a
parent to give him, or if the child is beyond parental control. If such an order
is made the local authority has parental responsibility for the child (section 33)
and it has a duty to safeguard and promote the welfare of the child (section
22).

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The authority, however, must allow reasonable contact with the child's
parents or guardian (section 34(1). Further a child in the care of a local
authority may not be placed in accommodation provided for the purpose of
restricting liberty ("secure accommodation") unless the child has a history of
absconding and is likely to abscond from any other description of
accommodation, and if he absconds is likely to suffer significant harm, or, in
any other type of accommodation, is likely to injure himself or other persons
(section 25).

Section 34 of the Act provides different ways in which an application
can be made to the court for an order that there may be contact between a
child in care and other persons and provides that the court may authorise an
authority to refuse such contact.

By paragraph 15(1) of Schedule 2 to the Act,

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

By section 1(1) of the Act, "When a court determines any question
with respect to - (a) the upbringing of a child; .... the child's welfare shall
be the court's paramount consideration".

Although not directly relevant to this case it is to be noticed that for
children not in care a contact order may be made under section 8 of the Act,

"requiring the person with whom a child lives, or is to live, to allow
the child to visit or stay with the person named in the order, or for
that person and the child otherwise to have contact with each other".

Alternatively, an Order may be made prohibiting steps to be taken by the
parent in meeting his parental responsibility.

Of the parties to this appeal, R was born on the 23 October, 1991; his
mother M was born on 11 January, 1977. Each of them was at all material
times a "child" for the purposes of the Act. R's father, A, who was not and
is not married to M, was born on 26 February, 1972 so that he was not at any
material time a "child".

In March 1992, Ward J. made interim care orders in respect of R and
of M on the application of the Birmingham City Council, ("Birmingham").
These interim orders were from time to time renewed. M, although ceasing
to have care of R on 11 March, 1992, had contact with R from time to time
until September, 1992.

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On the 30 September. 1992 Birmingham applied to the court for leave
to refuse M contact with R, and in this was supported by R's guardian ad
litem.

On the 16 November 1992 M herself applied for an Order that she
should have contact with R in which she was supported by A, and, on a
restricted basis, by her guardian ad litem.

Connell J. in his judgment, given after a five day hearing, set out the
facts in detail. It is sufficient for present purposes to summarise them. M
lived from an early age with her grandmother, then with foster parents and
subsequently in May, 1979 she was adopted. Her behaviour caused serious
problems at home and in two different units for adolescents to which she was
moved and where she assaulted members of the staff. After R's birth, she
was apparently for a while able to look after him satisfactorily but as time
went on it was found that she was handling him roughly. On one occasion in
February 1992 a doctor feared that her roughness would cause R bony injury.
M and R subsequently went to live in premises specially provided for mothers
with young children. There were disturbances involving both M and R, on
occasion M fighting with other residents and assaulting members of staff.

They were moved to an emergency facility in what is called a "crash
pad" and later to a college in Taunton. Here aggressive outbursts and assaults
by M led to anxiety about R's safety and well-being and R was taken to foster
parents. A guardian ad litem was appointed for each of them.

An attempt to reunite M with her natural parents and in particular with
her grandmother failed and after M went to live in local authority
accommodation she was violent and absconded from time to time. During
1992 contact was arranged between M and R which at times was satisfactory
but unfortunately instances of rough or unsuitable handling of the baby
occurred. There were further assaults on staff by M and on several occasions
she inflicted wounds on herself and took an overdose of tablets. Between the
end of August and 16 October 1992 she absconded on 13 occasions and said
she had been soliciting. From the end of October 1992 until the hearing
brought before Connell J. she was in secure accommodation when again
unhappy incidents occurred. M's immaturity and inability to put the interests
of the child first led the judge to conclude that there was a strong likelihood
that R would suffer significant harm due to inadequate care on the pan of this
mother. The judge had no doubt that M was beyond parental control and that
she was suffering, and was likely to suffer, significant harm attributable to her
being beyond parental control.

The judge, supported by both guardians ad litem, concluded that it was
very unlikely that R would make significant progress within twelve months
and that she did not have the ability to look after R. Nor was A prepared to
offer any significant support. It was important that R should be adopted as



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soon as possible and given a stable long term home. A care order was very
necessary.

As to contact, the judge accepted that only in exceptional circumstances
should contact between a mother and a young baby child be prevented and that
the court had to face the prospect that M might make further attempts to injure
herself if she was prevented from seeing R. However, the judge, after
carefully considering the evidence, including views of M's mother, her
guardian ad litem and A, took the view that occasional contact in secure
accommodation as proposed could prove distressing both for M and for R and
that there was a clear risk of physical harm to R.

He said, "So far as this aspect of the matter is concerned, it is [R's]
welfare which must be my paramount consideration. He is the child and in
this context [M] is the parent. Contact is the right of the child, not of the
parent. Where conflict arises, his welfare, therefore, takes priority over [M's]
welfare.

"I accept Mr. Traver's submission that [R's] welfare is not the
sole consideration in a situation such as this and I also accept
that [M's] welfare and wishes are relevant, but [R's] welfare
comes first and the likelihood of harm to him from any contact
hereafter is clearly established".

Accordingly, on 27 November 1992 Connell J. made:

1. care orders in respect of R & M, in R's case with a view to placement
   for his adoption;

2. a secure accommodation order under section 25 of the Act in respect
   of M for a period of three months;

(c) an order under section 34(4) of the Act that the local authority might
refuse contact between R and M save that contact by way of exchange
of information only be allowed twice a year.

No order was made in respect of contact between R and A so that by
virtue of section 34(1) of the Act, contact must be allowed between them,
although A has seen R on only one or two occasions.

M appealed to the Court of Appeal against the "secure
accommodation" order on the basis that the period should only have been two
months and the "refusal of contact order". As to the latter she was supported
by A. The appeal on the first ground was dismissed, that as to the latter was
allowed and no order was made as to contact. The result was thus that both
M and A were entitled to contact with R pursuant to section 34(1) of the Act
although it is clear that there has been little contact.

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In the Court of Appeal Balcombe L. J. (with whom Kennedy and Evans
L.JJ. agreed) took the view that the question of contact with M related to the
up-bringing of R and that the question of contact with R related to the up-
bringing of M. It was impossible to give each of them paramountcy and the
Act did not indicate that, where parent and child were both children, the
latter's interests were to prevail. On the contrary, while the welfare of M and
R taken together, is to be considered as paramount to the interests of any
adults concerned in their lives, as between themselves the court must approach
the question of their welfare without giving one priority over the other. As
Evans L.J. put it,

"Clearly, the court must have regard to R's welfare on the applications
made under [section 34(3) and (4) of the Act] and it must also have
regard to M's welfare on the notional application under subsection (2),
in both cases because section 1 requires it to do so, including the
particular factors insofar they are relevant listed in section 1(3)".

The requirements of paramountcy in section 1(1):

"must be regarded as qualified, in the cases where the welfare of more
than one child is involved, by the need to have regard to potential
detriment for one in the light of potential benefit for the other".

The Court of Appeal conducted this balancing exercise. As Balcombe
L.J. said:

"Weighing in the balance the respective interests of M and R as
summarised above, I have come to the conclusion that it is at the
moment premature to give the council leave to terminate contact. The
position is that contact may be positively beneficial to M and, provided
that it is adequately monitored, should not, in the short term at least,
be detrimental to R. The position will have to be reassessed when a
suitable long-term placement for R is found."

Accordingly, they set aside the judge's Order but made no Order under
section 34(2) thereby leaving it to the local authority to allow reasonable
contact pursuant to section 34(1).

The issue before your Lordships House is, thus, whether the Court of
Appeal erred in law in setting aside Connell J.'s order authorising
Birmingham to refuse contact between M and R save on the limited basis to
which reference has been made.

It is clear that the draftsman of the statute did not specifically provide
for the situation where both parent and child are children within the meaning
of the Act. Although wider arguments have been addressed on the basis of
other sections of the Act, it seems to me that the problem is resolved on an



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analysis of the structure of section 34 itself which deals with the special
situation of children in care.

The starting point is that by subsection (1) the appropriate authority
must allow the child in care reasonable contact with four categories of person,
a parent, a guardian, a person in whose favour a residence order was in force,
or a person who has had the care of the child immediately before the care
order in question was made. If there is an issue about contact any one of
those persons may apply to the court under subsection (3) and the court, "may
make such order as it considers appropriate with respect to the contact which
is to be allowed between the child and that person". For this purpose, "the
child" is the child in care in respect of whom an order is sought by one of the
four categories of person. That child is the subject matter of the application.
The question to be determined relates to that child's upbringing and it is that
child's welfare which must be the court's paramount consideration. The fact
that the parent is also a child does not mean that both parent's and child's
welfare is paramount and that each has to be balanced against the other.
Under subsection (3) the question to be determined does not relate to the
applicant's upbringing even if the applicant is a child.

By subsection (2), "on an application made by the authority or the
child, the court may make such order as it considers appropriate with respect
to the contact which is to be allowed between the child and any named
person". In this application the child in care may apply and, if that child is
the applicant, it is that child's welfare which is directly involved and which
is paramount even if the other "named person" is also a child. The welfare
of any other "named person", even if a child, is not also paramount so as to
require a balancing exercise to be carried out.

It may be doubted whether a parent was ever intended to be included
within the category of "child" in section 34(2) even if the parent is also a
child. In any event an order under subsection (2) does not legally oblige the
person named to have contact with the child, even if such contact will
normally take place where such an order is made.

By subsection (4) the court may make an order if the child in care or
the authority makes an application authorising the authority to refuse to allow
contact between the child in care and a person belonging to one of the four
categories of person mentioned above who are named in the order. Thus the
court may authorise refusal to allow contact between the child in care and the
parent. The child in respect of whose upbringing a question is to be
determined by the court is the son or daughter of the parent named in the
order and it is that child's welfare which is to be paramount. The fact that the
parent is also a child does not require the balancing exercise to be carried out
since no question is to be determined as to the parent's upbringing.

Moreover if an order is made or is to be made by the court under
subsection (4) allowing the authority to refuse contact between a parent, (even



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if a child), and its child the subject of the application, as not being in the
interests of the latter child, it is neither sensible nor useful to make an order
under subsection (2) that the parent-child applicant should have contact with
its child.

In the present case M's application was made on the face of it as a
parent in respect of R as a child under section 34(3) and Birmingham's
application was made in respect of contact between R as the child and M as
his parent under subsection (4). By section 34(5) of the Act the court has
power to make an order under section 34 in any family proceedings in
connection with a child in care, even though no application for an order has
been made with respect to the child. Accordingly when the court is seised of
family proceedings, which include proceedings under Part IV of the Act, the
court may consider whether an order should be made under section 34(2) of
the Act whether or not an application had been made by M as a child for
contact with R as the named person. It was therefore not necessary to
consider whether, in the application form which she herself submitted, the
application was limited to section 34(3) or whether it covered section 34(2) as
well. The court has power of its own motion to consider both applications as
if they had been made.

In the circumstances when the court decided that it was appropriate to
authorise the authority to refuse contact under subsection (4) with R (the child
in care whose welfare for that purpose was paramount) it was bound to refuse
the application by M under subsection (3) when a question arose as to R's
upbringing and when his welfare was paramount. And it was of no value to
make an order under subsection (2) for M to have contact with R when
contact between R and M could be refused by the authority as a result of the
court's order under subsection (44)4.

It was not therefore necessary for the balancing exercise, which the
Court of Appeal considered had to be carried out, to be performed. Connell
J. in making an order under section 34(4) was right to consider that R's
welfare was the court's paramount consideration. He gave the question as to
whether he should make such an order very careful consideration, giving due
weight to the fact that such an order prohibiting contact between a mother and
a young child should rarely be made and it is impossible to say that he erred
in the exercise of his discretion in a way which would justify an appellate
court from setting it aside. It is further to be noted that between February
1993, the date of the Court of Appeal's judgment, when contact again became
possible, and the date of the hearing before your Lordships' House, M saw
R only three times, all under supervision, the last being on the 18 August,
1993. A further meeting was arranged for the 18 September, but M failed to
attend and her whereabouts were not known. A, who did not see R during
most of 1992 has only seen him once since the Court of Appeal judgment.
R meanwhile is apparently well settled with potential adopters.

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In my opinion the Appeal should be allowed and the Order of Connell
J. should be restored.

It is necessary to add one rider. There was much argument before
your Lordships as to whether an application by a parent (who is a child) for
contact with its own child could be a question with respect to the "upbringing"
of the child who is a parent or whether that question related only to the child's
position as a parent and not to its "upbringing". Nothing in this opinion is to
be taken as indicating an opinion either way on that issue which, on the view
which I have taken on section 34, does not fall to be decided.

LORD WOOLF

My Lords,

I have had the advantage of reading in draft the speech prepared by my
noble and learned friend. Lord Slynn of Hadley. I agree with it and for the
reasons he gives I too would allow the appeal.

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