Birmingham City Council v H. (A Minor)
| Jurisdiction | England & Wales |
| Judge | Lord Keith of Kinkel,Lord Jauncey of Tullichettle,Lord Browne-Wilkinson,Lord Slynn of Hadley,Lord Woolf |
| Judgment Date | 16 December 1993 |
| Judgment citation (vLex) | [1993] UKHL J1216-2 |
| Date | 16 December 1993 |
| Court | House of Lords |
[1993] UKHL J1216-2
House of Lords
Lord keith of Kinkel
Lord Jauncey of Tullichettle
Lord Browne-Wilkinson
Lord Slynn of Hadley
Lord Woolf
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.
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.
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.
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).
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.
"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.
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...
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