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SZ v Birmingham City Council & Ors [2021] EWFC 15

This was a decision of Mr Justice Mostyn to summarily dismiss a father’s application for contact with two children in care.

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The judgment concerned the father's (F) application for contact with his children B (aged 16 ¾) and K (aged 14 ¼). Both children were in the care of Birmingham City Council (LA). B was living with the mother (M) and K was living in a care home, but having regular contact with M and B.

The LA had applied to discharge the care order in respect of B.

There had been a lengthy set of care proceedings which concluded in 2013 with care orders and an order pursuant to s.34(4) of the Children Act 1989, granting the LA authority to refuse contact between the children and F. B and K had therefore not had any contact with F since 2012.

F sought to keep in contact with B and K indirectly and for them to be able to exchange photographs and drawings with his three youngest children in his care. B and K were not only half-siblings of those children, but also their aunt and uncle as F had fathered the children with B and K's half-sister.

A case management order identified that F's application for contact must be preceded by an application to discharge the s.34(4) order. The court required the LA the serve a statement in response to F's application together with a plan setting out what steps were necessary for the assessment of F in respect of his contact application, if it was determined that his application should proceed.

The statement prepared recorded how fearful of F both children were. The existence of F's applications was not revealed to the children for fear of traumatising them further. The inferential conclusion was that they would unquestionably refuse to agree to any contact. 

The LA sought summary dismissal of F's applications. The court confirmed that it has a wide power in children proceedings to dismiss summarily an application where it is satisfied that it lacks enough merit to justify it being pursued (notwithstanding the complete absence of any such power in the Family Procedure Rules themselves).

F's applications were held to be "bound to fail" and therefore, summarily dismissed for the following reasons:

1. It was clear that the children would unambiguously refuse to engage with any form of contact and in light of their ages, their decision, if not objectively foolish or unreasonable, will almost invariably be decisive. On the evidence before the court, the children's decision was neither foolish nor unreasonable. The court accepted the LA's evidence that it would not be in the children's best interests for there to be any form of contact.

2. The effect of the s.34(4) order was to do no more than relieve the LA of its duty to allow the children actual reasonable contact with their parents. It does not relieve the LA of its wider duty to promote and maintain contact between a child and his/her family, under Schedule 2 Paragraph 15(1): "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 his parents."

Therefore, F's application was premature. The correct course of action was to send a letter to the LA, who would have to apply the duty set out in paragraph 15(1). The Judge commented that "a really carefully drafted letter written in sensitive and emollient terms, which expresses regret and contrition for the nine-year silence as well as for past misdeeds, might well be difficult to justify rejecting." If the LA declined to pass on the letter, then F could commence an application for contact under s.34(3) at that stage.

Additionally, the court discharged the care order in respect of B.

Case summary by Sophie Smith-Holland, Barrister, St John's Chambers

For full case, please see BAILII