T (Minors)

On an application under section 34(9) of the Children Act 1989 to discharge leave previously given under section 34(4), the court must treat the child’s welfare as paramount and require a demonstrable material change. It must guard against a disguised appeal, but should not impose a rigid onus or formula. A section 34(4) order is justified only where rehabilitation with the relevant person is no longer realistically possible and a probable need to terminate contact is foreseeable and not too remote. The intensity of reconsideration and procedure lies on a spectrum, increasing with the apparent change. The order was discharged for one child whose care plan had materially changed, but retained for another undergoing therapy.

The mother appealed from Chichester County Court against Judge Baker’s refusal to discharge section 34(4) orders made in December 1994 when care orders were imposed for her children. The appeal concerned S and B. The orders authorised the local authority to terminate parental contact.

By April 1996, B remained in residential care and was undergoing or about to undergo therapy; contact had been suspended. S’s adoption plan was being reconsidered, no suitable placement had been found, and his therapeutic arrangements remained uncertain. The central issue was the proper approach to an application under section 34(9) to discharge a section 34(4) order and whether the changed circumstances justified reconsideration.

1. Disposition. The appeal was allowed in part. The section 34(4) order was discharged in relation to S, but retained in relation to B.
2. Making a section 34(4) order. Lord Justice Simon Brown, with whom Mr Justice Holman agreed on the proper approach, rejected rigid or exhaustive guidance. Such an order should not be made while there remains a realistic possibility of rehabilitation with the relevant person, or merely because circumstances might later change. There must be a foreseeable and not too remote probable need to terminate contact. The court applied the helpful passage in Re L (Sexual Abuse: Standard of Proof) [1996] 1 FLR 116. It treated Re E (a Minor)(Care Order: Contact) [1994] 1 FLR 146 as supporting restraint against rigid general guidance.
3. Discharge applications. A section 34(9) application must be considered with the child’s welfare as the paramount consideration, subject to the limited leave requirement in section 91(17). The applicant must demonstrate a material change sufficient to show that the application is genuine rather than a disguised appeal against the original order. Once that threshold is met, the court must assess both the extent of the change and whether the central question should be reinvestigated. The appropriate procedure lies on the spectrum described in Re B (Minors) (Contact) [1994] 2 FLR 1; a full oral hearing is not invariably required. Mr Justice Holman considered that the judge had wrongly approached the matter as one of continuing onus, but agreed that the result for B was correct.
4. Application to the children. B’s care plan had not materially changed and was more advanced. His lack of prospect of rehabilitation, therapy and the welfare risk of disrupting that programme justified retaining the order. The judge was entitled to decide the matter without oral evidence and to rely on the local authority’s informed judgment. S’s adoption plan had materially altered, therapeutic provision was uncertain, and the local authority accepted that a foreseeable need to refuse contact was no longer likely. The order was therefore discharged, leaving the authority free to reapply if a genuine need arose.

1. Court of Appeal (Civil Division): In [1996] EWCA Civ 1022, the appeal was allowed in part. The section 34(4) order was discharged for S but not for B.
2. Chichester County Court: Judge Baker refused the mother’s application to discharge the section 34(4) orders made in December 1994.