H (Children), Re

An order under section 34(4) terminating parental contact is a powerful order and should be made restrictively and stringently. It is generally appropriate where rehabilitation is unlikely and the child is to be placed for adoption or foster care without continuing natural-family contact. The court should not make such an order prematurely for an uncertain or limited future use, even if it would facilitate an adoptive placement or avoid delay. Local-authority convenience is relevant only insofar as obstructing it would be contrary to the children’s best interests. The decision whether to make the order remains with the court and should not be transferred prospectively to the local authority. An appellate court should respect a carefully reasoned discretionary balance, including where alternative relief was not sought below.

The local authority appealed from Portsmouth County Court, where His Honour Judge Shawcross refused its application under section 34(4) to terminate parental contact with two children in care. The judge had made care arrangements with a care plan for adoption but anticipated continuing post-adoption contact. The application was intended to suspend contact during the transition from foster care to an adoptive placement, rather than to end contact permanently.

The judge considered that no adopters had been identified, expert evidence supported continuing contact, the parents were not predictably disruptive, and future implementation arrangements created uncertainty. The central issue was whether refusal of the order was an improper exercise of discretion because the order would facilitate placement and avoid delay, and whether the application should instead have been adjourned or granted subject to conditions under section 34(7).

1. The appeal was dismissed unanimously. Thorpe LJ held that the judge had given an impeccable explanation of the discretionary balance and had neither misdirected himself nor failed to take account of the local authority’s practical concern that an order would make adoption easier.

2. The statutory scheme requires reasonable parental contact unless the court authorises termination. The authorities nearest to the issue—Re L [1996] 1 FLR 116, Re T [1997] 1 FLR 517 and Re S (Care: Parental Contact) [2004] EWCA Civ 1397—established the restrictive approach. Such an order is ordinarily appropriate where rehabilitation is unlikely and the child is to be placed without continuing contact with the natural family. The fact that the local authority expected to need the order for the transition from foster care to adoption was only a limited variation on that situation. It did not justify an order whose future use remained uncertain, particularly where no adopters had been identified and continuing contact was supported by the evidence.

3. Thorpe LJ treated it as important that section 34(4) should not be used simply to ease the local authority’s task or to avoid a later application. The order would prospectively transfer residual responsibility for contact from the court to the local authority. Sedley LJ, in a concurring judgment, added that practical convenience matters only so far as impeding it would be contrary to the children’s best interests. On the findings, continued parental contact was compatible with the long-term plan and should not presently be placed at risk of severance. He supported that approach by reference to Re B Minors [1993] 1 FLR 543 at 551.

4. The suggested alternatives of adjourning the application or making an order under section 34(4) subject to conditions under section 34(7) did not provide grounds for appellate intervention. Those courses had not been invited below. The local authority’s publicly funded costs were left to assessment.

1. Court of Appeal (Civil Division): The local authority’s appeal was dismissed. [2005] EWCA Civ 318.

2. Portsmouth County Court: His Honour Judge Shawcross refused the local authority’s application under section 34(4) to terminate parental contact.