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H (A Child) [2010] EWCA 1296

Private law children application for permission to appeal s.91(14) order. Permission granted limited to the duration of the order.

Residence and contact dispute between the birth parents of an 11 year old girl. At a fact-finding hearing the court rejected the mother's complaints against the father. The daughter was ultimately ordered to live with the father, and the mother's application for contact was dismissed. At the same time the trial judge made a s. 91(14) order on the application of the children's guardian. The mother appealed on the basis that the guardian did not have the ability to make such an application; the judge had misdirected himself; and the judge had failed to put a time limit on the order.

The Court of Appeal (Ward LJ) held that:

1. The guardian could make a s 91(14) application. The child was a party to the proceedings and any party can make that sort of application. It would be different if the guardian was involved in the case simply as a Cafcass officer reporting to the court which is a different function from a Cafcass officer being appointed as a guardian.

2. The trial judge did not misdirect himself. He correctly referred to 'case after case' indicating that this was a drastic application. The trial judge relied heavily on the evidence of the guardian and the social worker. It was apparent that there was an improvement in the child's peace of mind and her security and her sense of belonging over the past 12 months, and he accepted their opinion that that security should not be disturbed unnecessarily and so the reason for imposing this order was to give security and peace of mind and not put it at risk.

3. The trial judge fell into error in not putting a time limit upon the order or explaining his reasons otherwise for not doing so. He was not referred to the authorities such as Re S (Permission to Seek Relief) [2007] 1 FLR 482. The appeal on this point only was not to be listed for hearing until the parties had engaged in mediation, or if there was no mediation until whoever informed the Court of Appeal that they were unwilling to do so.

Summary by Alfred Procter, barrister, 1 Garden Court  

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Case No: B4 / 2010 / 1867
Neutral Citation Number: [2010] EWCA Civ 1296
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PONTYPRIDD COUNTY COURT
(HIS HONOUR JUDGE HUGH JONES)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 26th October 2010

Before:
LORD JUSTICE WARD
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IN THE MATTER OF H (a Child)

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(DAR Transcript of
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The Appellant mother appeared in person, assisted by a McKenzie Friend, Mrs Haines.

The Respondents did not appear and were not represented.

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Judgment

(As Approved by the Court)

Crown Copyright ©

Lord Justice Ward:
1. This is an application for permission to appeal the order made by HHJ Hugh Jones sitting as a deputy circuit judge on 11 February 2010 when he made this as his third order: "Mother is forbidden pursuant to section 91(14) of the Children Act 1989 from making any further application in relation to the child without permission of the court". 

2. The child concerned is a girl who was 11 years old at the end of August.  She has had a chequered history.  She was born with certain difficulties which have made her life unpleasant but she has been involved in a good deal of litigation over many years.  Perhaps the most important was a fact-finding hearing conducted by HHJ Rees in March 2007, when the judge rejected the mother's complaints being made against the father.  Shortly after that the judge made an order that the child should live with her father in the paternal grandparents' home subject to supervision from the local authority.  When the relationship between father and his parents broke down and he left their home, the child stayed with her grandparents until father married in December 2009 and some time after that the child moved to make a home with her father and stepmother.  The judge felt that the father was at least heartfelt and genuine but he found the stepmother an impressive witness with a very sensitive understanding of the child's position.  And so the judge on the father's application made an order that the child was to live with the father and the stepmother, thereby giving stepmother parental responsibility.  He also ordered that the mother's application for contact be dismissed. 

3. Now, very sensibly if I may say so, and no doubt with heavy heart, mother has not sought to pursue an appeal against those orders.  That is a realistic view to have taken, for I would have found it impossible to give permission to appeal either of them, but it does mean that the mother is capable at least on some occasions of accepting the judgment of the court, which is not something she has ever been able to bring herself to do in relation to the fact-finding enquiry.  So this should be noted if this case comes back to the court as a step forward in the mother's acceptance of court orders, and I hope it will not be overlooked by the father who now has the satisfaction of knowing that mother accepts that, at least for the time being, the child is to remain with him and his new wife.  That is important. 

4. It is important because it relates to the matter which is under the appeal, the making of the section 91(14) restriction.  The judge made that order at the request and on the application of the child's guardian.  Some question has been raised by Mrs Haines, who appears as a Mackenzie Friend for the mother and raises it because the mother has asked her to do so, about the ability of the guardian to make such an application.  I cannot see why not.  The child is a party and any party can make that sort of application.  It would be different perhaps if the guardian were involved in the case simply as a Cafcass officer reporting to the court, which is a different function from the Cafcass officer being appointed as a guardian.

5. The judge's view on this is expressed shortly.  He explained correctly the effect of the order.  He explained that it was being made because he felt as was self-evident in the case that frivolous application should not be allowed to disturb family life and cause worry and anxiety, so that if the mother could persuade the court that there was good reason for her to make the application then the application can be heard.

6. Then he added these important words:

"It is, I know, regarded as a very drastic step.  Case after case has indicated that to be so."

7. Those sentences are important because the submission, cogently addressed by the Mackenzie Friend, is that the judge failed to direct himself expressly to the authorities and therefore misdirected himself.  In my judgment that argument cannot succeed.  This is an experienced judge who correctly referred to "case after case" indicating that this is a drastic application.  He then said in paragraph 26:

"One of the criteria for making what is regarded as a drastic order is very often the fact that repeated meritless applications have been made.  I do not think mother comes quite within that category" (my emphasis)

8. So there he was again correctly recognising that that is the usual basis upon which these applications are made, but correctly accepting that it is not the only reason for making the application.  He accepted that the mother had not fallen into that category.  She had made applications.  She was persisting at that time perhaps in trying to overturn the findings of fact, which did not impress the judge and which is why I have stressed she may have had a change of heart in that respect.

9. What did impress the judge is (paragraph 28 of the judgment):

"The other point is that the social worker and guardian and indeed father and stepmother have laid great emphasis in their evidence on the need for a final decision for security for the child."

10. The judge relied on that evidence of the guardian and social worker.  I cannot see that he can be criticised for having done so.  It was apparent that there was an improvement in the child's peace of mind and her security and her sense of belonging over the past 12 months, and he accepted their opinion that that security should not be disturbed unnecessarily and so the reason for imposing this order is to give security and peace of mind and not put it at risk.  That is a perfectly proper approach in the circumstances of a particular case, and in the circumstances of this particular case it seems to me to be manifestly justified.  Consequently I see no prospect at all of successfully appealing against the imposition of that restraint on applications. 

11. Where, however, it is arguable that the judge fell into error is in his failure, perhaps because he was not referred to the authorities, such as Re S (Permission to Seek Relief) [2007] 1 FLR 482 where this court (it is the judgment of Thorpe and Wall LLJ) held in paragraph 85 of that judgment:

"In our judgement, however, orders made without limit of time, and orders expressed to last until a child is 16 should be the exception rather than the rule, and where they are made, the reasons for making them should be fully and carefully set out."

12. In that regard it is arguable that the judge fell into error.  He should have put a time limit upon this order or explained his reasons otherwise for not doing so. He also ought, as the language of the section itself makes clear, to have identified the nature of the applications which should not be permitted to be made without permission.  So for example the order ought to have recited that she was not to make any further application under section 8 of the Act without permission of the court.

13. And so with a degree of reluctance I give permission to appeal on the limited basis, limited to the failure to specify the nature of the applications which she was prevented from making and specifying the time limit during which the embargo was to prevail.  I do not give permission to challenge the making of the section 91 order itself.  I say I do this with a heavy heart because it seems to me almost inevitable that the result of this appeal will be that the court will have to consider itself imposing a time limit and specifying the applications, for example any application under Section 8 as I have indicated.  In so many cases that come before the court the time limit is two to three years.  If one took a median of that of two and a half years, it coincides with the child's thirteenth birthday, at which point she will be better able to express her own view and make her own feelings even more clearly known than she has already, and it may be that something along those lines is likely to be the outcome of an appeal if successful.

14. And therefore I am going to direct that this appeal shall not be listed for hearing until the parties have engaged in mediation or, if there is no mediation, until whoever refuses to take part in the mediation informs the Court of Appeal that they are unwilling to do so.  I encourage that mediation because I am firmly of the view that with any good commonsense and but a minimum of imagination this appeal itself can be compromised.  But if in the course of the negotiation and mediation it opens the door but a chink to the parties coming to work together in the interests of the child, that will be a huge benefit to this little girl as she makes her awkward way from being a little girl into being a young woman, and it may assist her and her parents enormously if they embrace that opportunity to look beyond just the merits of this appeal to the wider issues that are involved.

15. The mother may have to reflect very carefully and very reluctantly and very unhappily that it may be best for this girl in the long run to have that period of peace and quiet for her to know that mother is still there, that mother still loves her, that mother still wants to see her, that mother wants to play a part in her life and it is important for the father and the stepmother to recognise that in the long term interests of this little girl she should be encourage to renew her relationship with her mother because, as is said in these courts time after time, if the little girl grows up believing that mother is in some way an ogre figure, not to be liked, not to be trusted, not to be seen, then deep within herself she may have to conclude, well, I am half of my mother as well as half of my father, if there is something wrong with my mother then maybe there is something wrong with me, and that is not the good message to send out to a child discovering her self esteem and her personality as she moves into adulthood.

16. So for all those reasons I give limited permission to appeal, the appeal not to be listed until the court has been informed that mediation has not been undertaken or, if undertaken, has not been successful.  A copy of this judgment can be provided for the parties at public expense even though we are in days of economic crisis.

Order: Application granted in part