Birmingham City Council v H (A Minor)

When contact proceedings under section 34 of the Children Act 1989 concern a child in local authority care, the welfare of that child is paramount. A parent who is also under 18 does not acquire equal paramountcy requiring the two children’s welfare to be balanced.

The relevant child is identified from the structure and subject matter of the particular section 34 application. On an application to authorise refusal of parental contact, the question concerns the upbringing of the child in care, not that of the child-parent. An order preventing contact between a mother and a young child should be rare, but may be made where the child’s welfare requires it.

Both an infant, R, and his mother, M, were children for the purposes of the Children Act 1989 and were subject to care orders. Connell J authorised the local authority under section 34(4) to refuse contact between them, apart from twice-yearly exchanges of information. He treated R’s welfare as paramount and found a clear risk of physical harm from contact.

The Court of Appeal allowed M’s appeal. It held that contact concerned the upbringing of both children and balanced their respective welfare interests without giving either priority.

The issue before the House of Lords was whether that balancing approach was legally correct and whether Connell J’s order should be restored.

1. Appeal allowed unanimously. Lord Slynn of Hadley delivered the leading speech. Lord Keith of Kinkel, Lord Jauncey of Tullichettle, Lord Browne-Wilkinson and Lord Woolf agreed. Connell J’s order authorising the local authority to refuse contact was restored.

2. Per Lord Slynn, section 34 of the Children Act 1989 resolves the case by identifying the child whose upbringing is the subject of each application. Under section 34(3), an application by a parent concerns contact with the child in care. That child is the subject matter of the application, so section 1(1) makes that child’s welfare paramount. The parent’s status as a child does not create two paramount welfare interests requiring a balancing exercise.

3. The same analysis applies to section 34(4). On an application by the child in care or the authority for permission to refuse parental contact, the relevant question concerns the upbringing of the child in care. No question is thereby determined about the child-parent’s upbringing. The Court of Appeal therefore erred by balancing M’s welfare against R’s welfare on equal terms.

4. Section 34(5) empowered the court, in family proceedings concerning a child in care, to consider any appropriate section 34 order of its own motion. It was consequently unnecessary to decide whether M’s application form invoked section 34(2) as well as section 34(3). Once refusal of contact was authorised under section 34(4), M’s section 34(3) application had to be refused. A section 34(2) order permitting M to have contact would serve no useful purpose while the authority remained authorised to refuse it.

5. Connell J had treated R’s welfare as paramount, carefully assessed the evidence and recognised that an order preventing contact between a mother and a young child should be rare. His exercise of discretion disclosed no error justifying appellate intervention.

6. Lord Slynn left open whether a child-parent’s own application for contact could concern that parent’s “upbringing”. His reasoning expressed no view on that question.

1. House of Lords: The appeal was allowed unanimously and Connell J’s order under section 34(4) of the Children Act 1989 was restored.
2. Court of Appeal: Balcombe LJ, with Kennedy and Evans LJJ agreeing, allowed the appeal concerning refusal of contact. The court set aside Connell J’s contact order after balancing the welfare interests of M and R. It dismissed the separate challenge to the duration of M’s secure accommodation order.
3. High Court: Connell J made care orders for M and R, a secure accommodation order for M, and an order authorising the local authority to refuse contact between M and R except through twice-yearly exchanges of information.