A Father v Lancashire County Council

A care order is discretionary and the child’s welfare remains paramount. The court must balance the importance of family reunification, identity, cultural and religious heritage against the child’s need for stability and security.

Under section 33(6)(a) of the Children Act 1989, a local authority must not bring a young child up in a different religious persuasion from that which would have applied had the care order not been made. The duty is flexible: religious persuasion may evolve, parental beliefs may change, and the child’s autonomy must be respected. The duty remains subject to the child’s welfare.

Human Rights Act proceedings cannot be used to re-litigate issues already determined or circumvent ordinary Children Act remedies. Section 91(14) restrictions remain a last resort and must be proportionate.

The father made multiple applications concerning his sons, D and A. He sought discharge of D’s care order, increased contact, relief under sections 7 and 8 of the Human Rights Act 1998, and orders concerning D’s religious upbringing. He also sought permission to apply for contact with A.

D had lived with his maternal grandmother under a care order since 2006. The care plan contemplated that he would be brought up with an understanding of his Muslim heritage, while maintaining family relationships. The father alleged that the local authority had failed to implement that plan and had infringed statutory and Convention rights.

The central issues were whether the care order should be discharged, whether contact should be increased, whether the religious-upbringing arrangements breached section 33(6)(a) or articles 8 and 9, and whether further applications should be restricted under section 91(14).

1. Care order. The application to discharge the care order, and the consequential residence application, were dismissed. The jurisdiction to discharge was discretionary. The court applied the welfare principle and checklist in section 1 of the Children Act 1989, giving particular weight to D’s emotional needs, his grandmother’s capacity to meet them, and the continuing character flaws which had previously prevented the father from caring for him. There was no evidence of material change sufficient to justify a further assessment. Stability in the existing placement outweighed the father’s case for reunification.
2. Contact. The court refused an order under section 34(3). The existing supervised contact sustained D’s relationship with his father and his sense of identity without undermining the placement. Increased or unsupervised contact created a strong likelihood that the father would use it to pursue the recovery of care, which would unsettle D. The local authority nevertheless remained under a continuing duty to arrange reasonable contact.
3. Human Rights Act claim. The claim was dismissed. The removal of D was a lawful, non-discriminatory and proportionate interference with article 8 rights, made through the statutory care proceedings for the legitimate purpose of protecting D. The Human Rights Act could not be used to obtain D’s return after the discharge application had failed or to re-litigate matters already determined. Such proceedings were an abuse of process.
4. Religious upbringing. Section 33(6)(a) had to be interpreted flexibly. In the case of a young child, the relevant religious persuasion initially reflects the parents’ faith, but it may be affected by later changes in family belief and by the child’s developing autonomy. The local authority must preserve and promote an understanding of the child’s religious heritage, but need not follow a rigid religious programme and must not act contrary to overall welfare. On the evidence, the local authority had not breached section 33(6)(a), articles 8 or 9, or the care plan. It should nevertheless seek further Muslim community resources, expert advice and renewed paternal-family contact.
5. Section 91(14). The application to restrict further applications concerning D was refused. Although the father’s litigation had often been unreasonable and burdensome, some concerns about D’s sibling contact, paternal family links, contingency planning and religious upbringing were legitimate. A restriction would therefore have been disproportionate at that stage. Future applications concerning D were directed to be transferred to the High Court and listed before the judge, with a strong warning that further unwarranted litigation could justify a restriction.
6. Upon the father’s undertaking not to apply for contact with A before A’s sixteenth birthday, no order was made on the applications concerning A. All the father’s applications concerning D under the Children Act and his Human Rights Act application were dismissed. The local authority’s section 91(14) application was refused.

The judgment records earlier proceedings in the Blackburn County Court and refusals of permission to appeal by the Court of Appeal, including a refusal by Wilson LJ on 6 September 2007 and a further refusal concerning the discharge application. No appeal from this judgment is stated.