Birmingham City Council v H (A.P.) (A Minor)

The case concerns the jurisdiction under section 34 of the Children Act 1989 to authorise a local authority to refuse contact between a child in care and a named person where that named person is also a child. The House of Lords held that, where an order is sought under section 34(4) to authorise refusal of contact, the welfare of the child in care (the subject of the application) is the paramount consideration under section 1(1) and the court need not carry out a balancing exercise giving equal weight to the welfare of the named person even if that person is themselves a child. The structure of section 34 distinguishes applications by a parent or other person under section 34(3), applications by the authority or the child under section 34(2), and applications authorising refusal of contact under section 34(4); an order under subsection (4) legitimately permits the authority to refuse contact if that is in the child in care's interests. The judge below had carefully exercised his discretion and his order authorising refusal of contact was restored.

This is an appeal from a Court of Appeal decision which had set aside a High Court order by Connell J authorising Birmingham City Council to refuse contact between a baby (R) in care and his mother (M), who was herself a child for the purposes of the Children Act 1989. Birmingham had applied under section 34(4) to refuse contact; M had separately applied for contact (principally under section 34(3)).

The facts: R was an infant taken into care because the judge found he was likely to suffer significant harm from M's inadequate and dangerous care. M had a history of violent outbursts, absconding and self-harm and had at times handled the baby roughly. Connell J made care orders, a secure accommodation order for M and, under section 34(4), authorised the local authority to refuse contact between R and M, permitting only exchange of information twice a year. The Court of Appeal allowed M's appeal against the refusal order and declined to make an order under section 34(2), leaving contact to the authority under section 34(1).

The central legal issues framed were: (i) whether the court, when determining an application under section 34 concerning a child in care and a named person who is also a child, must balance the welfare of both children as though both were jointly paramount; and (ii) whether an order under section 34(4) authorising a local authority to refuse contact can properly be made where the named person is a child.

The House of Lords analysed the structure of section 34 and related provisions, emphasising that where the court is deciding an application under subsection (4) the child in care is the subject matter and his or her welfare is paramount under section 1(1). The court need not perform the balancing exercise adopted by the Court of Appeal that treated the welfare interests of the two children as competing but equally paramount. The Lords concluded that Connell J had properly exercised his discretion, had given due weight to the rarity and gravity of prohibiting contact, and had not erred in law in authorising the authority to refuse contact. The appeal was allowed and the High Court order restored.

Appeal allowed. The House of Lords held that when a court authorises a local authority under section 34(4) to refuse contact, the welfare of the child in care (the subject of the application) is the court's paramount consideration under section 1(1); it was unnecessary to balance that welfare against the welfare of the named person even if that person is also a child. Connell J had properly exercised his discretion in authorising refusal of contact and his order was restored.

First instance: Connell J (High Court) made care orders, a secure accommodation order for the mother and authorised the local authority to refuse contact (27 November 1992). Court of Appeal (Balcombe LJ, Kennedy and Evans LJJ) set aside the refusal of contact order and made no order under section 34(2), leaving contact to the authority under section 34(1). House of Lords allowed Birmingham's appeal and restored Connell J's order. Neutral citation: [1993] UKHL 9.