M (A Child)

Applications to vary an order authorising refusal of parental contact with children in care are brought under Children Act 1989, section 34(9). The court must assess each child separately, consider the professional evidence, and give proper weight to the child’s wishes and feelings. Those wishes may nevertheless be outweighed by compelling protective and welfare considerations. Practical difficulties in implementing contact, including custody or safeguarding assessments, are consequences to consider if an order is made; they are not themselves reasons for dismissing the application. An unintended remark made after judgment cannot supplant the judge’s actual reasons.

After care orders were made for four children who had suffered severe physical abuse, the local authority was authorised to refuse contact between the children and their parents. The mother and father later issued contact applications. Leeds County Court treated them as applications under section 34(9) of the Children Act 1989 and dismissed both on 22 June 2012. Permission to appeal was granted, partly because of the children’s expressed wishes. Christopher subsequently no longer sought variation, while Ephraim remained interested in future communication. The central issue was whether the judge had erred in refusing to vary the contact authorisation.

The appeals were dismissed. Lord Justice Thorpe delivered the judgment, with Lord Justice Longmore and Lord Justice Patten agreeing.

1. The applications were properly treated as applications under section 34(9) of the Children Act 1989. That provision supplied the route for seeking variation or discharge of the order authorising the local authority to refuse contact.
2. The principal basis for the appeal concerning Christopher had disappeared when he made clear that he had come to terms with the order and did not wish it to be varied. The suggestion that an adolescent’s views might later change did not undermine the judge’s assessment on the evidence before him.
3. The judge had considered each child separately, reviewed the professional evidence, and carried out the required welfare balancing exercise. He gave weight to Christopher’s wishes and feelings, but explained why they were outweighed by substantial countervailing considerations arising from the children’s serious physical abuse and the protective purpose of the order.
4. The judge’s observations about the practical difficulties of contact while the father was in custody, and the need for a MAPPA assessment, did not make those matters reasons for refusing the applications. They identified the consequences that would arise if contact were ordered. An unintended observation made during post-judgment exchanges was not part of the judge’s reasoning and carried no weight.

The appeals therefore lacked substance or foundation and were dismissed.

• Court of Appeal (Civil Division) — On 17 January 2013, the mother’s and father’s appeals were dismissed.
• Leeds County Court — HHJ Jenkins dismissed both applications on 22 June 2012, treating them as applications under section 34(9) of the Children Act 1989.