Are We Missing a Trick? Section 34 of the Children Act - An under-used application
Julie Stather, barrister, of 42 Bedford Row examines the advantages to child, parents and local authority of using section 34 of the Children Act
Julie Stather, Barrister, 42 Bedford Row
Despite the obvious impact of an order allowing the local authority to refuse contact in the context of ongoing proceedings, or indeed the possible ramifications of applications made by the parents for contact, how often do you hear of a s 34 application being adjudicated upon? Or appealed?
This article will consider whether proper use is being made of the powerful tools afforded by section 34. It is a particularly appropriate time to do so given the recent publication of the Ofsted Children's Care Monitor 2011 by the Children's Rights Director for England, which indicated that 11% of children in care think that they should have more say about contact with their parents. Where children do feel that their voice is not being heard, or that their rights are not being considered, there would appear to be justification for Guardians to exercise their power to make applications under s 34, but that same responsibility to consider the right of the child to contact also rests with the local authority and the parents.
Under s 34(1) Children Act 1989 the authority must allow "reasonable" contact between a child in its care and his parents, guardian, and others with parental responsibility (see s 34(1)(a) to (d)). The nature and quantity of such contact varies widely, and all too often it seems to be dictated (at least in part) by the resources of the local authority. Nonetheless, in the majority of cases some contact does take place.
Where contact does not take place, it is helpful to consider two sets of circumstances: firstly, where there has never been contact, and secondly, where contact has taken place but has been stopped. In the majority of instances in which contact does not take place, the issue will either have been raised and compromised between the parties, without recourse to the courts, on the grounds that it is "reasonable" in the circumstances of that case, that there should be no contact, or else the issue will not have been raised at all. If the issue were to be aired in court rather than being compromised, what would the possible outcomes be?
Where contact has never been started
In many cases where contact is never actually started, the matter will have been compromised because the local authority's reasons for not facilitating contact are thought to be overwhelming. Examples of this include cases where the child has been assaulted by the parent; the parent is violent or otherwise dangerous; or increasingly commonly, the parent is imprisoned. There will be no need to remind the reader of the widely acknowledged research as to the benefits of some ongoing contact between parent and child in most circumstances – indeed that thinking is so established as to have been reflected not only in s34(1), but also in the UN Convention of Rights for the Child 1989 (to which the United Kingdom is a signatory):
"States' parties shall respect the right of the child who is separated from one or both parent, to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to a child's best interests" (Article 9.3).
So what would happen if, in the face of apparently overwhelming arguments against contact, a parent were to make an application under s 34(3) for the court to make a contact order? The court, obliged to consider the matter from the starting point of s34(1), and indeed Article 9.3, of the presumption in favour of contact, would have to examine at that very earliest stage in the case whether contact could be achieved. This could bring the issue of risk assessment to the start of proceedings (rather than awaiting the Case Management Conference or even later). It would encourage the local authority to examine available support for the child in terms of counselling etc as part of its immediate duty to facilitate contact rather than to deal with it in a final care plan. Early consideration by the court of whether contact is in a child's best interests should, of course, minimise the interruption to contact where long term contact is envisaged, and in any event would focus minds at this early stage on whether contact can be safely achieved.
Perhaps the best example of the missed opportunity to make a s 34(3) application is in the case of C (Children)  EWCA Civ 1774. In this case the children (aged 10 and 9 at the start of proceedings) were removed from their mother's care in January 2008. Final care orders were made in October 2008 allowing for contact between the mother and each boy four times a year for a period of two hours. It is clear from the leading judgment of Mrs Justice Baron at the final appeal that the mother had not conducted herself in such a way as to prioritise the needs of the children during the contact which preceded the final hearing in October 2008. Baron J had no doubt that mother's conduct had an "effect on the boys and their perception of their safety in their mother's care". After the October hearing no contact was facilitated.
What is interesting is that despite the judge at first instance stating in his judgment in October 2008 that "if necessary (the local authority) are prepared to seek an order under s 34(4) if they are of the view that contact would not be in the boys' best interests", no application was made when contact was stopped (and indeed there was no s 34(4) order until May 2011 – much later in the proceedings).
Even more interestingly, the mother did not make an application for contact until July 2009, some nine months after her last contact had taken place. At the same time the mother applied for a psychological assessment of the children – at this stage the boys were saying that they did not want to see their mother despite their previous good relationship her. One wonders what would have happened if the mother had made an application under s 34(3) when contact was first withheld. What further deterioration in the parent/child relationship occurred when there was no contact in the aftermath of the making of final orders, and the months that followed? By the time indirect contact was attempted after a hearing in December 2010 the boys were hostile even to indirect contact, and perhaps not surprisingly the case concluded with the judgment dismissing mother's appeal against the s 34(4) order in October 2011.
Where established contact is stopped
So what happens when the local authority wishes to stop established contact? This usually happens in one of two circumstances: (a) following an 'incident' there is an 'emergency' suspension of contact for not more than 7 days (pursuant to s 34(6)); and (b) following a period of longer decline in the quality of contact often accompanied by an expression of dissatisfaction or unwillingness by the child to attend further sessions.
When an incident occurs requiring the immediate cessation of contact, the local authority can do so of its own volition and without the court's sanction under s 34(6):-
"an authority may refuse to allow contact that would otherwise be required by virtue of subsection (1) or an order under this section if-
(a) they are satisfied that it is necessary to do so in order to safeguard the child's welfare; and
(b) the refusal-
(i) is decided upon as a matter of urgency; and
(ii) does not last for more than 7 days".
If in the view of the authority the child's safety requires that contact be suspended, the first step is either for the social worker to write to the parent direct, or for the local authority's legal department to inform the parents' solicitor by letter. The letter should set out the date of and reason for the decision, the proposed duration of the suspension, and the possible "remedies available in the case of dissatisfaction" (Regulation 8, Care Planning, Placement and Case Review (England) Regulations 2010). However, the news that contact is being stopped is often given orally, usually by social workers but sometimes by family support workers, and often over the telephone. This is the first stage at which non-compliance with the statutory framework is a missed opportunity for the parents because if the local authority did comply with the Regulations and give written reasons for stopping the contact, it would have to set out formally its position. It would not then be able to amplify or add to the reasons given at a later stage (for example at a contested s 34(4) application). Of course there is nothing to stop parents and solicitors requesting a Regulation compliant written confirmation, but they rarely do.
The missing s 34(4) application
A period of suspension under s 34(6) should be followed by an application under s 34(4) of the Act seeking authorization that the Local Authority may refuse contact until a set date. Section 34(4) is also the proper route for the cessation of contact in all non-urgent situations.
"On an application made by the authority or the child, the court may make an order authorising the authority to refuse to allow contact between the child and any person who is mentioned in paragraphs (a) to (d) of subsection 1 and named in the order."
The court system seems curiously devoid of such applications, for the main part being sacrificed on the altar of the 'no order' principle and the expediency of dealing with such matters without needing court time.
One leading authority is that of Re K  EWHC 540 (Fam), a case with an unfortunate history in that the judicial review proceedings found that the child had been removed unlawfully from the mother's care. When the care proceedings came before Mr Justice Munby, it was on the local authority's application to discharge a s 38(6) order for residential assessment, and for a s 34(4) order permitting the authority to refuse contact between mother and child. The applications were made against a background of the mother absenting herself from the residential unit after only three days of assessment, and then having a physical fight with the father whilst holding the six week old baby, culminating in her literally throwing the baby towards a social worker from a distance of 18 inches. Munby J found, after hearing evidence, that the incident referred to took place as described by the local authority. On that basis the discharge of the s 38(6) order was a simple matter as the residential unit was no longer prepared to carry out the assessment. Of more interest for present purposes is the s 34(4) application, about which Munby J commented as follows:
"It is a very drastic thing indeed to interfere with a young mother's contact with her newborn baby, and his contact with her, particularly at a time when 'threshold' (see section 31(2) of the Act) is yet to be established. It is an even more drastic thing to deny contact altogether, and something which lies at the very extremities of the court's powers. Extraordinarily compelling reasons must be shown to justify an order under section 34(4) at this early stage in proceedings."
This sets the tone for what follows in the judgment, and it is the later conclusions which demonstrate why both parents and local authorities should litigate these matters:
"..I will make a s 34(4) order, but limited to expire on the date of the case management conference.. This will allow the dust to settle and give G (mother) another opportunity to show that she can put K's needs before her own problems. But I do not want there to be any misunderstanding. The onus will very much be on G to demonstrate...that contact, no doubt carefully supervised and, it may well be, subject to stringent conditions, is something that should be allowed to resume. The next two or three weeks will give G a breathing space to show, if she can, that she is willing and able to work together with the local authority, to take on board the local authority's concerns about her behaviour during contact, and to demonstrate as best she can that she is going to behave herself if contact resumes."
Clearly, when these applications are litigated, it provides an excellent opportunity for judicial input. In this case, the mother received an all important 'warning' from the Bench, which no doubt echoed and reinforced advice that she had already been given. As for the local authority, such observations cannot but help their case, especially in terms of seeking an early final hearing, for how can it be argued that a child should be returned to the care of his parents if even supervised contact is not safe?
Will the order mean anything?
If there is any doubt as to the impact s 34 orders have on the direction of a case, one need look no further than P-B (Children)  EWCA Civ 143. In that case the judge was highly critical of the failure of the local authority to comply with the contact order made under s 34. After non-compliance she gave the order 'teeth' by attaching a penal notice enforceable against the Head of Children's Services. The issue of the ability to attach a penal notice was then appealed, with the leading judgment being given by Lord Justice Wall. It is clear from the judgment that both the lower and higher courts were eager to flex their collective judicial muscles to prioritise the welfare of the child. The judgment states that although r 4.21 of the Family Proceedings Rules 1991 (which provides for penal notices to be attached to contact orders) applied only to private law orders against individuals, the lacuna of enforceability of orders against public bodies cannot have been intended, and therefore Rule 1, Order 29 County Court Rules (as incorporated into the CPR 1998) allowing for committal orders against a director of a "body corporate" would apply. Flowing from that, the attachment of a penal notice to a s 34 order against the local authority was found to be lawful and procedurally correct.
The dearth of reported cases, and indeed the paucity of applications coming before the courts, indicates that s 34 is under-utilised by both parents and local authorities.
Applications under s 34 have considerable potential for bringing the issue of contact to the forefront of a court's consideration at an early stage in the proceedings. Any order made will obviously have considerable implications for the behaviour of all parties, including the local authority, and will also have the potential to influence the eventual outcome of proceedings.
It is abundantly clear that all practitioners will have to find new ways of working in the brave new world of the six month care case, and to that end, earlier detailed examination of contact can only be a useful tool in the hands of both parents and the local authority.