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.

Start your day with The Independent, sign up for daily news emails
Have you tried new the Independent Digital Edition apps?
ebooks
ebooksA special investigation by Andy McSmith
  • Get to the point
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Recruitment Genius: Photographer / Floorplanner / Domestic Energy Assessor

£16000 - £25000 per annum: Recruitment Genius: A Photographer/ Floor planner /...

Ashdown Group: Front-End Developer - Surrey - £40,000

£30000 - £40000 per annum: Ashdown Group: Front-End Developer - Guildford/Craw...

Recruitment Genius: Customer Service Assistant

£13500 - £15000 per annum: Recruitment Genius: A Customer Service Assistant is...

Recruitment Genius: Sales Executive - OTE £35,000

£16000 - £35000 per annum: Recruitment Genius: An ambitious and motivated Sale...

Day In a Page

Not even the 'putrid throat' could stop the Ross Poldark swoon-fest'

Not even the 'putrid throat' could stop the Ross Poldark swoon-fest'

How a costume drama became a Sunday night staple
Miliband promises no stamp duty for first-time buyers as he pushes Tories on housing

Miliband promises no stamp duty for first-time buyers

Labour leader pushes Tories on housing
Aviation history is littered with grand failures - from the the Bristol Brabazon to Concorde - but what went wrong with the SuperJumbo?

Aviation history is littered with grand failures

But what went wrong with the SuperJumbo?
Fear of Putin, Islamists and immigration is giving rise to a new generation of Soviet-style 'iron curtains' right across Europe

Fortress Europe?

Fear of Putin, Islamists and immigration is giving rise to a new generation of 'iron curtains'
Never mind what you're wearing, it's what you're reclining on

Never mind what you're wearing

It's what you're reclining on that matters
General Election 2015: Chuka Umunna on the benefits of immigration, humility – and his leader Ed Miliband

Chuka Umunna: A virus of racism runs through Ukip

The shadow business secretary on the benefits of immigration, humility – and his leader Ed Miliband
Yemen crisis: This exotic war will soon become Europe's problem

Yemen's exotic war will soon affect Europe

Terrorism and boatloads of desperate migrants will be the outcome of the Saudi air campaign, says Patrick Cockburn
Marginal Streets project aims to document voters in the run-up to the General Election

Marginal Streets project documents voters

Independent photographers Joseph Fox and Orlando Gili are uploading two portraits of constituents to their website for each day of the campaign
Game of Thrones: Visit the real-life kingdom of Westeros to see where violent history ends and telly tourism begins

The real-life kingdom of Westeros

Is there something a little uncomfortable about Game of Thrones shooting in Northern Ireland?
How to survive a social-media mauling, by the tough women of Twitter

How to survive a Twitter mauling

Mary Beard, Caroline Criado-Perez, Louise Mensch, Bunny La Roche and Courtney Barrasford reveal how to trounce the trolls
Gallipoli centenary: At dawn, the young remember the young who perished in one of the First World War's bloodiest battles

At dawn, the young remember the young

A century ago, soldiers of the Empire – many no more than boys – spilt on to Gallipoli’s beaches. On this 100th Anzac Day, there are personal, poetic tributes to their sacrifice
Dissent is slowly building against the billions spent on presidential campaigns – even among politicians themselves

Follow the money as never before

Dissent is slowly building against the billions spent on presidential campaigns – even among politicians themselves, reports Rupert Cornwell
Samuel West interview: The actor and director on austerity, unionisation, and not mentioning his famous parents

Samuel West interview

The actor and director on austerity, unionisation, and not mentioning his famous parents
General Election 2015: Imagine if the leading political parties were fashion labels

Imagine if the leading political parties were fashion labels

Fashion editor, Alexander Fury, on what the leaders' appearances tell us about them
Phumzile Mlambo-Ngcuka: Home can be the unsafest place for women

Phumzile Mlambo-Ngcuka: Home can be the unsafest place for women

The architect of the HeForShe movement and head of UN Women on the world's failure to combat domestic violence