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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Birmingham City Council v H (A Minor) [1993] UKHL 9 (16 December 1993)
URL: http://www.bailii.org/uk/cases/UKHL/1993/9.html
Cite as: [1993] UKHL 9, [1994] 1 FLR 224, [1994] 2 AC 212

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JISCBAILII_CASE_FAMILY

    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.

    - 1 -

    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).

    -2-

    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.

    - 3 -

    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

    - 4 -

    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.

    - 5 -

    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

    -6-

    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

    -7-

    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.

    -8-

    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.

    - 9 -


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