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Law Report: Welfare of baby was paramount: Birmingham City Council v H (a minor) and others. House of Lords (Lord Keith of Kinkel, Lord Jauncey of Tullichettle, Lord Browne-Wilkinson, Lord Slynn of Hadley and Lord Woolf), 16 December 1993

On an application by a local authority for leave to terminate contact between a baby in care and his mother, who was also a child in care, the welfare of the baby was paramount.

The House of Lords unanimously allowed an appeal by a son from the Court of Appeal's decision to allow reasonable contact between the son and his mother, who was herself a child, and restored the order of Mr Justice Connell authorising Birmingham to refuse contact between the mother and son.

The son was born in October 1991 and his mother in January 1977. Interim care orders were made in respect of both. The mother ceased to have care of the son but had contact until September 1992 when the council applied to the court for leave to refuse the mother contact. The mother applied for an order that she should have contact.

Mr Justice Connell concluded that the son's welfare was paramount and took priority over the mother's welfare, and the local authority might refuse contact between mother and son. The Court of Appeal allowed the mother's appeal, taking the view that where parent and child were both children, the court must approach the question of welfare without giving one priority over the other.

James Munby QC, and Patrick Roche (Barbara Carter) for the son's guardian ad litem; Roderic Wood QC, and David Travers (Adie Evans & Warner, Birmingham) for the mother's guardian ad litem; Michael Horowitz QC, and Jeremy Posnansky (City Solicitor) for Birmingham; Elizabeth Lawson QC, and Elizabeth Szwed (Young & Lee, Birmingham) for the mother; Malcolm Bishop QC, and Rehna Azim (Plunkett Lohmas & Co) for the father.

LORD SLYNN said that the problem was resolved by an analysis of section 34 of the Children Act 1989. By subsection (1) the authority must allow the child in care reasonable contact with four categories of person, including a parent. If there was an issue about contact any one of those persons might apply to the court under subsection (3) and the court might make such contact order as it considered appropriate. 'The child' was the child in care in respect of whom an order was sought by one of the four categories of person. It was that child's welfare which must be the court's paramount consideration. Under subsection (3) the question to be determined did not relate to the applicant's upbringing, even if the applicant was a child.

The fact that the parent was also a child did not mean that both parent's and child's welfare was paramount and that each had to be balanced against the other.

By subsection (2) the authority or child in care might apply for a contact order between the child and any named person. If the child was the applicant, it was that child's welfare which was directly involved and which was paramount. The welfare of any other 'named person', even if a child, was not also paramount so as to require a balancing exercise to be carried out.

By subsection (4) the court might authorise refusal to allow contact between the child in care and the parent. It was that child's welfare which was paramount. The fact that the parent was also a child did not require the balancing exercise to be carried out since no question was to be determined as to the parent's upbringing.

If an order was made, or to be made, under subsection (4) allowing the authority to refuse contact between a parent and child, it was 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 the mother's application was made under section 34(3) and Birmingham's application was made under subsection (4). The court might consider whether an order should be made under section 34(2) whether or not an application had been made by the mother as child for contact with the son as the named person. When the court decided that it was appropriate to authorise Birmingham to refuse contact under section 34(4), it was bound to refuse the application by the mother under subsection (3) and it was of no value to make an order under subsection (2) for the mother to have contact.

It was not therefore necessary for the balancing exercise, which the Court of Appeal considered had to be carried out, to be performed.

Mr Justice Connell in making the order under section 34(4) was right to consider that the child's welfare was the court's paramount consideration.