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Re M (A Child) [2005] EWCA Civ 1696

Mother’s allegation of bias in relation to residence application dismissed, but section 91(14) order varied on appeal.

Re M (A Child) [2005] EWCA Civ 1696

Court of Appeal: Wall and Lloyd LJJ (6 December 2005)

Mother's allegation of bias in relation to residence application dismissed, but section 91(14) order varied on appeal.

This was an application by the mother in respect of orders made by the judge awarding residence of the child to the father. The judge had dismissed the mother's application for residence, and made an order under section 91(14) of the Children Act 1989, without limitation of time, preventing the mother from making any application in relation to the child without leave of the court.

At the time the original residence order was made, the judge had agreed with a CAFCASS report recommending residence to the father and generous contact to the mother, on the basis that the child would stand a much better prospect of retaining a proper relationship with his mother and a positive image of his mother; whereas, if he were to live with his mother, the mother's emotions and her expressions of her views about the father would render it quite likely that the child would end up with a distorted view of his father, which could, under the mother's influence, become hostile and negative.

At the hearing of the mother's application for residence, it was alleged on behalf of the mother that the judge had entered the hearing with a closed mind, to the extent that he had refused to order a further CAFCASS report, but had said that he could not possibly vary the residence order in favour of the mother without having one.

The mother's principal grounds for complaint were (1) that the judge had shown bias in respect of her residence application, and (2) that the imposition of the section 91(14) order without limitation of time had been disproportionate and unreasonable.

Held, refusing permission to appeal in respect of the residence order, but allowing the appeal in respect of the section 91(14) order, that:

(1) it was not appropriate to raise the allegation of bias in this way, and such an allegation could not succeed as a ground of appeal; rather, the mother's solicitors should have applied to the judge at or shortly after the earlier hearing and invited him to recuse himself; since a suggestion of bias against a judge was a very serious matter, he should have been given a proper opportunity to consider his conduct and make a decision about whether or not his position has been compromised; but

(2) while the judge had been entitled to reach the view that the child required a period of stability and peace from litigation, section 91(14) was to be used in this case not as an absolute prohibition but as a filter; accordingly, taking account of the leading case of Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573, the court itself should determine (rather than passing the decision back for further consideration by the judge) that the section 91(14) order would be effective for a period of three years from the Court of Appeal hearing. This did not mean either that there would automatically have to be a hearing at the end of three years or that there should be no hearings within the three-year period; however, the mother needed to appreciate that the child, having been the subject of three hearings as to residence, with two hearings which had determined his residence with his father, needed time to settle down, free from the prospect of any further litigation about his residence.