SZ v Birmingham City Council & Ors (Children: Summary Dismissal) [2021] EWFC 15

The judgment concerned a father’s (F) application for indirect contract with his children, B aged 16 and (K) aged 14, both of whom had been in the care of the local authority since 2013. At the conclusion of these care proceedings an order pursuant to s.34(4) of the Children Act 1989 was made, granting the local authority leave to refuse contact with the father [4]. The father was deported from the UK in 2017, received a lifetime ban on re-entry, and had also fathered another child (ED) with LM, the half-sister of the two children [8].

The local authority’s statement in response to F’s application recorded how extremely fearful both children were of their father, whereby K feared his father finding and killing him, and B would not travel independently for the same reason [16]. The extent of such a fear was shown by the fact that the existence of F’s application could not be revealed to the children for fear of traumatising them [17]. The statement “could not have been more clear as to the perceived lack of merit of the father’s application” and as such the local authority applied for summary dismissal of the application [20].

Mostyn J pointed out that notwithstanding the complete absence of any rule, in FPR Part 12 to 14, that permits striking out or summary dismissal on the ground of a lack of prospect of success [21]. Munby LJ, in Re C (Children) [2012] EWCA Civ 1489 at [14], confirmed that in cases relating to children the court has wide powers to dismiss on summary application where a case is “if not groundless, lacking enough merit to justify pursuing the matter.”

Mostyn J dismissed the application on the above grounds, based on the fact that the Gillick-competent children made it clear they would “unambiguously refuse to engage in any form of contract with him” [27]. Secondly, the order made under 34(4) did not relieved the local authority of its duty to promote and maintain contact between child and their family (Sch 2, para 15(1)). Thus, F’s application was premature, the correct course of action would be send a letter for his children to the local authority, who would then make a decision in light of the aforementioned duty as to whether to hand it on [30]. The local authority could only refuse if the promotion of contact was objectively and reasonably not practicable or consistent with the children’s welfare.

The full judgment can be accessed here.