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Re A (A CHILD) (supervised contact) (s91(14) Children Act 1989 orders) [2021] EWCA Civ 1749

The Court dismissed an appeal against an order under s91(14) lasting for 2 years coupled with a supervised contact order whereby there was no provision as to how contact would progress; the Appellant unsuccessfully arguing that this was wrong in principle.

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Factual background

The mother is a doctor originally from Hungary. She has three other children from previous relationships. She met the father in 2013 and A was born in 2015. In 2017 the mother returned to Hungary for 6 months and left all 4 children in the care of the father. In 2018 she again went to Hungary with A leaving the other children with the father who had agreed to this trip so that A could receive medical treatment. The mother did not return in accordance with the agreement and therefore the father issued abduction proceedings to secure the return of A to the jurisdiction.

Unbeknown to the father, the mother returned with A to the UK, firstly to Hastings then to Northern Ireland but failed to comply with court orders to return A to the care of the father. Such were the welfare concerns that a Children's Guardian was appointed to represent A's interests in what were described by the court as "long running and destructive private law, child arrangements proceedings".

Since the summer of 2019 A has lived with her father.

A fact-finding hearing took place in October of that year with the court finding that the mother had taken steps to deliberately frustrate the relationship between A and her father. As the mother remained in Northern Ireland, she had telephone contact with A but this had to stop when the mother made wholly unfounded allegations of sexual abuse of A by the father. What followed thereafter was a campaign against the father by the mother of very serious allegations.

Assessments followed of the mother and child. The expert clinical psychologist concluded that the mother had a personality disturbance that meant she had been exposing her children to maltreatment without being aware of the impact of the same upon them and recommended DBT for some 24 months to treat emotional dysregulation. The prognosis was however pessimistic as the mother lacked insight into her difficulties and thus did not accept the need for treatment. The treating and expert paediatricians found no evidence of sexual abuse or neglect of A by her father as alleged by the mother.

At the final hearing HHJ Dawson decided that A would live with her father and have professionally supervised contact with the mother for 6 hours every other weekend. The judge made an order under s91(14) prohibiting either party from making an application to the court without leave for a period of two years.

It is noteworthy that the mother made multiple complaints against professionals and experts in the case as detailed at paragraphs 13, 21 and 24 respectively. She also sent large volumes of correspondence to the father and continued to make complaints to various authorities about his care, each requiring some form of enquiry and intrusion in the lives of A and her father.

Application

The grounds upon which the mother was permitted to appeal focused on the following point: that an order that contact is to be supervised when coupled with the making of a s91(14) order, does not allow for progression to unsupervised contact unless the mother undertakes the therapy recommended by the clinical psychological expert and that this is an impermissible fetter on the development of a more natural mother daughter relationship.

It was properly conceded that when the judge at first instance was faced with the choice of no direct contact or supervised contact there was no safe alternative to professional supervision given the facts of this case. 

Discussion

The legal principles as set out by Butler-Sloss LJ in Re P continue to be endorsed by the court but are now of course some 22 years old. In this judgment the guidance is helpfully placed into a modern context whereby the court notes the changes in the forensic landscape with the advancement of technology and the impact this has on the way that we now communicate along with how the withdrawal of legal aid has affected the conduct of litigation, especially in difficult cases such as this one.

In this modern world, the court must consider the overall conduct of a party including the way in which they communicate which in this case included multiple vindictive complaints and a bombardment of correspondence, all amounting to a real intrusion into the lives of the father and A. The court describes this as "lawfare" - the use of the court proceedings as a weapon of conflict and as such warrant an order under s91(14) being made.

The court also considered how the provision in s67 of the Domestic Abuse Act 2021 may impact upon the guidelines in re P. Whilst not yet in force, King LJ forms the conclusion that the proposed s91A dovetails with the modern approach that she examines in this judgment.

The court when considering the law found no error of law or principle by the trial judge. The effect of the s91(14) order is only as a filter and if there is credible evidence that comes to light within the 2 year period to change the contact order, permission will be given upon application to either party who seeks it. What the order provides is protection to A from further litigation and all that brings with it. The judge was right to make such an order as it was overwhelmingly in A's best interests to do so as it was to make the s8 order about professionally supervised contact. Had the orders not been made, the reality is that contact would be limited to indirect only.

The appeal was therefore dismissed.

Case summary by Anna Walsh, Barrister, Coram Chambers

For full case, please see BAILII