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Re F (A Child) [2006] EWCA Civ 752

Father's appeal against refusal of residence order, and imposition of section 91(14) order, dismissed.

Court of Appeal: Hedley J and Thorpe LJ (11 May 2006)

Father's appeal against refusal of residence order, and imposition of section 91(14) order, dismissed.

This case concerned a family with two boys, born in December 1992 and July 1995, who lived with their mother, by virtue of a residence order, and had extensive contact with their father. There was a long history of litigation in this case, and the parties had been unable to take advantage of the Court of Appeal mediation scheme, apparently due to financial constraints, even after substantial reductions had been offered.

Most recently, the father had applied for a residence order in respect of the younger child. Less than 24 hours before the date set for the hearing, an expert report advised by the child and family court reporter was obtained and faxed to the parties. Both parties asked the judge whether he would adjourn the proceedings so they could consider the report, but he declined to do so. At the hearing, the judge dismissed the application and made an order under section 91(14) of the Children Act 1989 prohibiting any further applications to vary residence orders by either party to be made for three years, and he refused permission to appeal.

The father applied for permission to appeal, with appeal to follow if granted.

Held, granting permission to appeal but dismissing the appeal itself, that the case was properly heard and the matter was dealt with within the proper ambit of the discretion available to the judge.

Concerning the judge's firm action in refusing to adjourn the hearing, the court considered that he was entitled to take that view, bearing in mind his anxiety not to prolong the battle more than he had to, to resolve it while he had time to resolve it, and satisfying himself that the report contained nothing over which serious exception could be taken.

The court examined the judge's reasoning for making the section 91(14) order, and observed that he had identified the father as the author of the bulk of the applications in the case. On further reflection, this was probably not a fair conclusion, but it did not vitiate the exercise of the judge's discretion, since the order was made as against both parents and not as against one or the other. Furthermore, the judge was entitled to conclude, on the facts of this case, that the factors identified in Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573 were present, and the order was appropriate to give the children a break from the conflict between their parents.

The court also observed that an application for a joint residence order, where no attempt was being made to disturb the actual arrangements on the ground, would be a proper application to entertain, and would not be caught by the prohibition which the judge had correctly laid down.

Finally, the court expressed concern that the parties, who had been prepared to enter into a mediation process, had been prevented or denied by their inability to pay; and urged them to explore again the possibility of a publicly funded mediation to avoid the need for a return to the county court.

Digest prepared by Peter Smith

Read the full text of the judgment here