Law Report: Mother, 16, allowed contact with son: Re H (Minors: Parental Contact) - Court of Appeal (Lord Justice Balcombe, Lord Justice Kennedy and Lord Justice Evans): 19 February 1993

Although in proceedings under the Children Act 1989 the 'child's welfare shall be the court's paramount consideration', in a case where both mother and child were minors then the court should approach the question of their welfare without giving one priority over the other, but should give the interests of both equal weight in considering what order to make.

The Court of Appeal allowed an appeal by the 16-year-old mother of a 15-month-old boy, against a direction by Mr Justice Connell, on 27 November 1992, that Birmingham City Council should have leave to terminate face-to-face contact between the mother and son, both of whom were in its care.

Elizabeth Szwed (Young & Lee, Birmingham) for the mother; David Travers (Adie Evans & Warner, Birmingham) for the mother's guardian ad litem; Patrick Roche (Barbara Carter) for the son's guardian ad litem; Julia Macur (City Solicitor, Birmingham) for the council; Rehna Azim (Plunkett Lohmus & Co, Birmingham) for the son's father.

LORD JUSTICE BALCOMBE said the mother had suffered from behavioural problems from an early age, including aggression towards her peers at school, her teachers, her family, and staff at the residential units where, at various times, she was placed.

Although she became pregnant well under the age at which she could legally consent to sexual intercourse, she had been a willing participant and wished to keep and care for her child. But while she did not deliberately harm the child, her inability to control herself placed his safety at risk. Given her personality and behavioural problems, there was no prospect of her giving the child the care he required in the forseeable future. He was placed with foster parents. The separation caused the mother great distress and she made several attempts to injure herself.

The council applied under section 34(4) of the 1989 Act for permission to refuse her contact with her son. 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.' The judge held that the son's welfare was the paramount consideration and took priority over the mother's welfare.

But the mother was herself a child and in the care of the local authority. The question of contact between them related to the upbringing of them both, so in each case the Act required their welfare to be the paramount consideration. That was impossible. The court should therefore give section 1(1) such meaning as it could sensibly bear.

There seemed no reason why Parliament should have intended, on a question as to the upbringing of two children, that the court should regard one child's interest as paramount to that of the other.

Accordingly, while the welfare of the mother and son, taken together was 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.

Since the judge applied the wrong test on the issue of contact between mother and child, his decision could not stand, but, rather than send it back the Court of Appeal would decide the case.

Weighing their respective interests in the balance, his Lordship then concluded it was premature to permit the council to terminate contact at this stage.

LORD JUSTICE KENNEDY and LORD JUSTICE EVANS concurred.