Birmingham City Council v H (A Minor) [1993] UKHL 9

House of Lords
Between
Birmingham City CouncilAppellantH (A Minor)Respondent
Before
Lord Keith of KinkelLord Jauncey of TullichettleLord Browne-WilkinsonLord SlynnLord HadleyLord WoolfDate 16 December 1993

LORD BROWNE-WILKINSON

My Lords,For the reasons given in the speech to be delivered by my noble and learned friend, Lord Slynn of Hadley, which I have read in draft and with which I agree, I would allow this appeal.It is desirable that something should be said about the level of separate representation of parties, all at public expense, which was a feature of this appeal. The appellant proceeding through his guardian ad litem was represented by solicitors and by senior and junior counsel funded by the Legal Aid Board, and rightly so. Birmingham City Council, which supported the appeal, was similarly represented, at the expense of the Birmingham community charge or council tax payers. Separate solicitors and also senior and junior counsel appeared for each of the mother, the father and the guardian ad litem to the mother. These three had lodged a joint written case. The mother and the father were funded by the Legal Aid Board, and the mother's guardian ad litem by Birmingham City Council. There was no significant difference between the arguments for those who supported the appeal or between the arguments for those who resisted it. In the circumstances there must be a serious question whether the degree of separate representation was necessary, or in any event whether the employment of so many senior counsel was justified. It is to be hoped that in future cases where a similar question may arise serious consideration will be given by solicitors and counsel to the practicability and desirability where appropriate of securing joint representation with a view to minimising the burden on public funds.

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LORD JAUNCEY OF TULLICHETTLE

My Lords,I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Slynn of Hadley. I agree with it and for the reasons he gives I too would allow the appeal.

LORD BROWNE-WILKINSON

My Lords,For the reasons given in the speech prepared by my noble and learned friend Lord Slynn of Hadley, with which I agree, I too would allow the appeal. I also agree with the comments made by my noble and learned friend. Lord Keith of Kinkel.

LORD SLYNN OF HADLEY

My Lords,This Appeal raises a question relating to the court's jurisdiction to authorise a local authority to refuse contact between a child in care and another person when that other person, in this case the child's mother, is also a child in care.Under the Children Act 1989 ("The Act") "child" for all purposes relevant to the present Appeal means a person under the age of 18.By section 17 of the Act it is the general duty of every local authority to safeguard and promote the welfare of children within their area who are in need, and, so far as is consistent with that duty, to promote the upbringing of such children by their families by providing appropriate services.Pursuant to section 31 of the Act, a local authority may apply to the court for an order that a child be placed in the care of a designated local authority if the child is suffering, or is likely to suffer, significant harm and if the harm, or likelihood of harm, is attributable to the care given or likely to be given to the child, being not what it would be reasonable to expect a parent to give him, or if the child is beyond parental control. If such an order is made the local authority has parental responsibility for the child (section 33) and it has a duty to safeguard and promote the welfare of the child (section 22).

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The authority, however, must allow reasonable contact with the child's parents or guardian (section 34(1). Further a child in the care of a local authority may not be placed in accommodation provided for the purpose of restricting liberty ("secure accommodation") unless the child has a history of absconding and is likely to abscond from any other description of accommodation, and if he absconds is likely to suffer significant harm, or, in any other type of accommodation, is likely to injure himself or other persons (section 25).Section 34 of the Act provides different ways in which an application can be made to the court for an order that there may be contact between a child in care and other persons and provides that the court may authorise an authority to refuse such contact.By paragraph 15(1) of Schedule 2 to the Act,
"Where a child is being looked after by a local authority, the authority shall, unless it is not reasonably practicable or consistent with his welfare, endeavour to promote contact between the child and - (a) his parents . . . . "
By section 1(1) of the Act, "When a court determines any question with respect to - (a) the upbringing of a child; .... the child's welfare shall be the court's paramount consideration".Although not directly relevant to this case it is to be noticed that for children not in care a contact order may be made under section 8 of the Act,"requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other".Alternatively, an Order may be made prohibiting steps to be taken by the parent in meeting his parental responsibility.Of the parties to this appeal, R was born on the 23 October, 1991; his mother M was born on 11 January, 1977. Each of them was at all material times a "child" for the purposes of the Act. R's father, A, who was not and is not married to M, was born on 26 February, 1972 so that he was not at any material time a "child".In March 1992, Ward J. made interim care orders in respect of R and of M on the application of the Birmingham City Council, ("Birmingham"). These interim orders were from time to time renewed. M, although ceasing to have care of R on 11 March, 1992, had contact with R from time to time until September, 1992.

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On the 30 September. 1992 Birmingham applied to the court for leave to refuse M contact with R, and in this was supported by R's guardian ad litem.On the 16 November 1992 M herself applied for an Order that she should have contact with R in which she was supported by A, and, on a restricted basis, by her guardian ad litem.Connell J. in his judgment, given after a five day hearing, set out the facts in detail. It is sufficient for present purposes to summarise them. M lived from an early age with her grandmother, then with foster parents and subsequently in May, 1979 she was adopted. Her behaviour caused serious problems at home and in two different units for adolescents to which she was moved and where she assaulted members of the staff. After R's birth, she was apparently for a while able to look after him satisfactorily but as time went on it was found that she was handling him roughly. On one occasion in February 1992 a doctor feared that her roughness would cause R bony injury. M and R subsequently went to live in premises specially provided for mothers with young children. There were disturbances involving both M and R, on occasion M fighting with other residents and assaulting members of staff.They were moved to an emergency facility in what is called a "crash pad" and later to a college in Taunton. Here aggressive outbursts and assaults by M led to anxiety about R's safety and well-being and R was taken to foster parents. A guardian ad litem was appointed for each of them.An attempt to reunite M with her natural parents and in particular with her grandmother failed and after M went to live in local authority accommodation she was violent and absconded from time to time. During 1992 contact was arranged between M and R which at times was satisfactory but unfortunately instances of rough or unsuitable handling of the baby occurred. There were further assaults on staff by M and on several occasions she inflicted wounds on herself and took an overdose of tablets. Between the end of August and 16 October 1992 she absconded on 13 occasions and said she had been soliciting. From the end of October 1992 until the hearing brought before Connell J. she was in secure accommodation when again unhappy incidents occurred. M's immaturity and inability to put the interests of the child first led the judge to conclude that there was a strong likelihood that R would suffer significant harm due to inadequate care on the pan of this mother. The judge had no doubt that M was beyond parental control and that she was suffering, and was likely to suffer, significant harm attributable to her being beyond parental control.The judge, supported by both guardians ad litem, concluded that it was very unlikely that R would make significant progress within twelve months and that she did not have the ability to look after R. Nor was A prepared to offer any significant support. It was important that R should be adopted as

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soon as possible and given a stable long term home. A care order was very necessary.As to contact, the judge accepted that only in exceptional circumstances should contact between a mother and a young baby child be prevented and that the court had to face the prospect that M might make further attempts to injure herself if she was prevented from seeing R. However, the judge, after carefully considering the evidence, including views of M's mother, her guardian ad litem and A, took the view that occasional contact in secure accommodation as proposed could prove distressing both for M and for R and that there was a clear risk of physical harm to R.He said, "So far as this aspect of the matter is concerned, it is [R's] welfare which must be my paramount consideration. He is the child and in this context [M] is the parent. Contact is the right of the child, not of the parent. Where conflict arises, his welfare, therefore, takes priority over [M's] welfare."I accept Mr. Traver's submission that [R's] welfare is not the sole consideration in a situation such as this and I also accept that [M's] welfare and wishes are relevant, but [R's] welfare comes first and the likelihood of harm to him from any contact hereafter is clearly established".Accordingly, on 27 November 1992 Connell J. made:care orders in respect of R & M, in R's case with a view to placement for his adoption;a secure accommodation order under section 25 of the Act in respect of M for a period of three months;(c) an order under section 34(4) of the Act that the local authority might refuse contact between R and M save that contact by way of exchange of information only be allowed twice a year.No order was made in respect of contact between R and A so that by virtue of section 34(1) of the Act, contact must be allowed between them, although A has seen R on only one or two occasions.M appealed to the Court of Appeal against the "secure accommodation" order on the basis that the period should only have been two months and the "refusal of contact order". As to the latter she was supported by A. The appeal on the first ground was dismissed, that as to the latter was allowed and no order was made as to contact. The result was thus that both M and A were entitled to contact with R pursuant to section 34(1) of the Act although it is clear that there has been little contact.

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In the Court of Appeal Balcombe L. J. (with whom Kennedy and Evans L.JJ. agreed) took the view that the question of contact with M related to the up-bringing of R and that the question of contact with R related to the up- bringing of M. It was impossible to give each of them paramountcy and the Act did not indicate that, where parent and child were both children, the latter's interests were to prevail. On the contrary, while the welfare of M and R taken together, is to be considered as paramount to the interests of any adults concerned in their lives, as between themselves the court must approach the question of their welfare without giving one priority over the other. As Evans L.J. put it,"Clearly, the court must have regard to R's welfare on the applications made under [section 34(3) and (4) of the Act] and it must also have regard to M's welfare on the notional application under subsection (2), in both cases because section 1 requires it to do so, including the particular factors insofar they are relevant listed in section 1(3)".The requirements of paramountcy in section 1(1):"must be regarded as qualified, in the cases where the welfare of more than one child is involved, by the need to have regard to potential detriment for one in the light of potential benefit for the other".The Court of Appeal conducted this balancing exercise. As Balcombe L.J. said:
"Weighing in the balance the respective interests of M and R as summarised above, I have come to the conclusion that it is at the moment premature to give the council leave to terminate contact. The position is that contact may be positively beneficial to M and, provided that it is adequately monitored, should not, in the short term at least, be detrimental to R. The position will have to be reassessed when a suitable long-term placement for R is found."
Accordingly, they set aside the judge's Order but made no Order under section 34(2) thereby leaving it to the local authority to allow reasonable contact pursuant to section 34(1).The issue before your Lordships House is, thus, whether the Court of Appeal erred in law in setting aside Connell J.'s order authorising Birmingham to refuse contact between M and R save on the limited basis to which reference has been made.It is clear that the draftsman of the statute did not specifically provide for the situation where both parent and child are children within the meaning of the Act. Although wider arguments have been addressed on the basis of other sections of the Act, it seems to me that the problem is resolved on an

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analysis of the structure of section 34 itself which deals with the special situation of children in care.The starting point is that by subsection (1) the appropriate authority must allow the child in care reasonable contact with four categories of person, a parent, a guardian, a person in whose favour a residence order was in force, or a person who has had the care of the child immediately before the care order in question was made. If there is an issue about contact any one of those persons may apply to the court under subsection (3) and the court, "may make such order as it considers appropriate with respect to the contact which is to be allowed between the child and that person". For this purpose, "the child" is the child in care in respect of whom an order is sought by one of the four categories of person. That child is the subject matter of the application. The question to be determined relates to that child's upbringing and it is that child's welfare which must be the court's paramount consideration. The fact that the parent is also a child does not mean that both parent's and child's welfare is paramount and that each has to be balanced against the other. Under subsection (3) the question to be determined does not relate to the applicant's upbringing even if the applicant is a child.By subsection (2), "on an application made by the authority or the child, the court may make such order as it considers appropriate with respect to the contact which is to be allowed between the child and any named person". In this application the child in care may apply and, if that child is the applicant, it is that child's welfare which is directly involved and which is paramount even if the other "named person" is also a child. The welfare of any other "named person", even if a child, is not also paramount so as to require a balancing exercise to be carried out.It may be doubted whether a parent was ever intended to be included within the category of "child" in section 34(2) even if the parent is also a child. In any event an order under subsection (2) does not legally oblige the person named to have contact with the child, even if such contact will normally take place where such an order is made.By subsection (4) the court may make an order if the child in care or the authority makes an application authorising the authority to refuse to allow contact between the child in care and a person belonging to one of the four categories of person mentioned above who are named in the order. Thus the court may authorise refusal to allow contact between the child in care and the parent. The child in respect of whose upbringing a question is to be determined by the court is the son or daughter of the parent named in the order and it is that child's welfare which is to be paramount. The fact that the parent is also a child does not require the balancing exercise to be carried out since no question is to be determined as to the parent's upbringing.Moreover if an order is made or is to be made by the court under subsection (4) allowing the authority to refuse contact between a parent, (even

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if a child), and its child the subject of the application, as not being in the interests of the latter child, it is neither sensible nor useful to make an order under subsection (2) that the parent-child applicant should have contact with its child.In the present case M's application was made on the face of it as a parent in respect of R as a child under section 34(3) and Birmingham's application was made in respect of contact between R as the child and M as his parent under subsection (4). By section 34(5) of the Act the court has power to make an order under section 34 in any family proceedings in connection with a child in care, even though no application for an order has been made with respect to the child. Accordingly when the court is seised of family proceedings, which include proceedings under Part IV of the Act, the court may consider whether an order should be made under section 34(2) of the Act whether or not an application had been made by M as a child for contact with R as the named person. It was therefore not necessary to consider whether, in the application form which she herself submitted, the application was limited to section 34(3) or whether it covered section 34(2) as well. The court has power of its own motion to consider both applications as if they had been made.In the circumstances when the court decided that it was appropriate to authorise the authority to refuse contact under subsection (4) with R (the child in care whose welfare for that purpose was paramount) it was bound to refuse the application by M under subsection (3) when a question arose as to R's upbringing and when his welfare was paramount. And it was of no value to make an order under subsection (2) for M to have contact with R when contact between R and M could be refused by the authority as a result of the court's order under subsection (44)4.It was not therefore necessary for the balancing exercise, which the Court of Appeal considered had to be carried out, to be performed. Connell J. in making an order under section 34(4) was right to consider that R's welfare was the court's paramount consideration. He gave the question as to whether he should make such an order very careful consideration, giving due weight to the fact that such an order prohibiting contact between a mother and a young child should rarely be made and it is impossible to say that he erred in the exercise of his discretion in a way which would justify an appellate court from setting it aside. It is further to be noted that between February 1993, the date of the Court of Appeal's judgment, when contact again became possible, and the date of the hearing before your Lordships' House, M saw R only three times, all under supervision, the last being on the 18 August, 1993. A further meeting was arranged for the 18 September, but M failed to attend and her whereabouts were not known. A, who did not see R during most of 1992 has only seen him once since the Court of Appeal judgment. R meanwhile is apparently well settled with potential adopters.

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In my opinion the Appeal should be allowed and the Order of Connell J. should be restored.It is necessary to add one rider. There was much argument before your Lordships as to whether an application by a parent (who is a child) for contact with its own child could be a question with respect to the "upbringing" of the child who is a parent or whether that question related only to the child's position as a parent and not to its "upbringing". Nothing in this opinion is to be taken as indicating an opinion either way on that issue which, on the view which I have taken on section 34, does not fall to be decided.

LORD WOOLF

My Lords,I have had the advantage of reading in draft the speech prepared by my noble and learned friend. Lord Slynn of Hadley. I agree with it and for the reasons he gives I too would allow the appeal.

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