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M (A Child) [2012] EWCA Civ 446

Court of Appeal judgment on appeal from the making of a s91(14) order. Appeal allowed.

The first instance court had been considering applications for contact and parental responsibility orders in respect of M, aged almost nine. Unfortunately, part way through the hearing the father lost his self-control and, in the words of the circuit judge, "ranted at the injustice of the system and the performance of the guardian" before applying to withdraw his applications. When permission was refused he stormed out of court. The judge went on to make no orders for contact or parental responsibility (although providing for indirect contact by way of a preamble) before making a two-year s91(14) order, relying on the evidence of the expert and the guardian. The father appealed.

Thorpe LJ gave the judgment of the Court. His Lordship was critical of the preparation of the appeal, not least the fact that no transcript had been made available to the Court. Notwithstanding those criticisms, his Lordship was satisfied that the appeal should be allowed. The father had not had proper notice of the issue and the order had been too widely drawn. A better course would have been to seek to draw the father back into the proceedings, for example to adjourn for a period to allow the father and his counsel to discuss developments and possibilities. His Lordship went on to make directions for a supplementary report from the expert, replacement of the guardian and new guardian's report and further expedited hearings. Etherton LJ and Henderson J agreed.

Summary by Stephen Jarmain, barrister, 1 Garden Court Family Law Chambers


Case No: B4/2011/0617
Neutral Citation Number: [2012] EWCA Civ 446
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday 14th March 2012


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(DAR Transcript of
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Ms Elizabeth Isaacs (instructed by Messrs Williams Bache and Co) appeared on behalf of the Appellant Father.

Mr David Hawkins (instructed by Yorkshire Family Law Associates) appeared on behalf of the Respondent Mother

Ms Shona Rogers (instructed by Cafcass) appeared on behalf of the child by his Guardian.
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(As Approved by the Court)

Crown Copyright ©

Lord Justice Thorpe:

1. This is an appeal from the order of HHJ Carr QC sitting in the Sheffield County Court on 1 March 2011.  The appeal is brought with permission of Black LJ given on 2 November 2011.  The date for the hearing today, 14 March, was notified to all parties by letter from this court on 23 November 2011.  So we sit nearly four months later and the preparation of this case for this hearing has been lamentable; lamentable on all sides in my opinion.  We do not have a transcript of the judgment below.  We have only a note, which we are told by Mr Hawkins, who represents the mother, was prepared by the guardian's solicitor.  Ms Rogers, who represents the child, is unable to confirm that because her instructing solicitor is having what is apparently known as a "leave day".  It was surely obvious to all the parties that, in the light of the issues to be determined by this court, a transcript of the proceedings in the court below on 1 March was absolutely essential.  We have nothing, not even a note  of what transpired on that day. 

2. On the previous day HHJ Carr had sat to consider contact between E, who is nearly nine years of age, and his father who was the applicant for contact and parental responsibility orders.  The judge had dealt with the case in May of the previous year and she had the advantage of a report from the guardian and the expert opinion of a psychologist Dr Lynch.  So on the first day Dr Lynch gave her evidence and we are told that the father commenced his evidence. The judge was obviously preliminarily concluding that supervised contact, which had been on foot for some time, had to be maintained.  There were practical difficulties because the supervision had been undertaken by CAFCASS for some months and they could not continue.  The identification of an affordable alternative supervisor was undoubtedly difficult. 

3. So the judge very sensibly adjourned to allow the parties to discuss the practicalities.  She resumed on the following day, that is 1 March, and at some stage the father lost his self-control and, as the judge was to put it in the note of judgment that we have, ranted at the injustice of the system and at the performance of the guardian. 

4. For the mother Mr Hawkins, who appears here today, was there below and he is the only person who is able to give us any information directly as to the dramatic events of the 1 March.  Mr M was represented by counsel, Mr Paller  and the guardian was represented by a solicitor, Mrs Alder.  The father, having vented his disgust, applied to withdraw his applications.  The judge refused that so the father walked out.  It seems that Mr Paller pursued him but was not sufficiently swift in pursuit and he had cleared the building before Mr Paller could catch up with him.

5. So the judge then proceeded.  As to what happened thereafter, I take the note of the judge's judgment.  In the concluding three paragraphs she apparently said:

"I heard briefly from the guardian.  She will inform [E] of what has happened.  [Father] does not seek indirect contact or put forward proposals for supervised contact.  I had not made up my mind about contact or about parental responsibility prior to him leaving Court, and I am not inclined to make an order.

The preamble can record what has happened and provide for indirect contact.  [Mother] has parental responsibility and as a basic human right [the father] has the right to receive some information about [E].  The ball is in [mother's] court as to how much information he does receive. I have not granted parental responsibility.

[Mother] has suffered within the proceedings.  The view of the expert and the children's guardian is that there should be no further proceedings for a period of 2 years.  I am satisfied that the welfare of the child and the mother requires this.  The order is proportionate and justified and it is acknowledged that it is a draconian order. I make this section 91(14) for 2 years to expire on 28.02.2013.  By this time [E] will be 10½ years old.  Any application for leave is to be served on the Court and the Court is to give notice to [mother]. I make public funding provisions."

6. The father had in one sense brought this on himself and, in further justification of the judge's words, I would emphasise that the father's counsel took no further part in the proceedings.  He did not seek to cross-examine the guardian.  He did not make submissions to the judge.  He reduced his role from that of counsel to that of observer. 

7. The attack on this conclusion is directed to the section 91(14) order and it is extensively deployed by Ms Isaac in a very thorough amended skeleton argument.  She has brought to our attention many authorities dealing with circumstances in which the imposition of this prohibition was justified.  But, standing back, it seems to me apparent that from the standpoint of child welfare, which is and always remains the judge's paramount signpost, the father's outburst was a disaster and if the interests of the child were paramount the judge had to ask herself: how can we recover from this low point?  Surely, asking herself that question, an obvious answer would be to give the father time to repent, to give him an opportunity to come to his senses, to adjourn at a minimum for 24 hours to allow Mr Paller and the father to discuss developments and possibilities. 

8. It seems to me that the judge was plainly wrong to proceed immediately to dismiss the father's applications, to merely make an indirect contact order less generous than that recommended by the guardian and to impose this restriction.  Surely this was not the time to prohibit or to inhibit the father.  The proper course was to, as it were, draw him back into the proceedings and not to put a barrier on his further engagement with the system. 

9. There are a number of subsidiary points that can be made.  The only glimmer of a warning to the father was at paragraph 52 of a report which was not signed off by the guardian until 18 February, which said that she would suggest that the father does not make an application for further contact for at least 12 months.  There is no similar warning in Dr Lynch's report, although we are told that she raised the possibility in her oral evidence.  There is abundant authority to say that the court must be cautious in making these prohibitions.  They should properly be advanced by application supported by evidence, and the person who is sought to be prohibited must be given every opportunity to respond to the application. 

10. Furthermore, as the statute makes plain, the limitation should specify the nature of future applications which are not to be issued without permission.  Here there was nothing, simply a blanket notice.  That the father repented, as in my judgment it was predictable that he would or might, is demonstrated by the fact that he had, as a litigant in person (albeit with the advice of solicitors), filed an Appellant's Notice in this court by 14 March.  The tragedy is that those representing him in these proceedings have not at any stage pressed for expedition, so that the application of 14 March does not get to the single Lord Justice until 2 November and that it was not listed, because the single judge has not ordered any expedition, until the 14th.  So the end result is that there has been an interruption in the relationship between father and child now of 12-month duration and that 12 months is bound to extend as the father's case is now prepared for hearing.

11. So, whilst acknowledging that the judge was faced with a very difficult situation, I am in no doubt at all that her reaction exceeds the generous ambit of discretion and that it was plainly wrong.  I would set aside the section 91(14) order.  I would ask Ms Isaacs for an undertaking that an application will be issued in the Sheffield County Court by 4pm tomorrow, and I would direct that a letter of joint instruction be sent to Dr Lynch to give a supplement at her earliest convenience.  I would direct that the child's guardian be replaced, some other CAFCASS officer to take over from Ms Randle and that the new guardian should prepare a report at earliest convenience.  The father's application should then be listed before HHJ Jones or, if not available, HHJ Shipley and any further directions needed in the interim be reserved to whichever judge is going to take the final hearing.  Those would be my proposals.

12. As my Lord says, we would direct expedition in listing, although of course there is no point in listing until there is a timetable.  But hopefully there is no reason why we should not direct that the matter be listed, say 14 days after the filing of the last report.

Lord Justice Etherton :
13. I agree.

Mr Justice Henderson :
14. I also agree.

Order: Appeal allowed