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Children: Private Law Update (July 2015)

Alex Verdan QC, of 4 Paper Buildings, reviews recent important judgments in private law children cases.

Alex Verdan QC, 4 Paper Buildings

Alex Verdan QC, 4 Paper Buildings

In this update I will consider the following areas: 

Section 91(14) orders
Generally seen as the weapon of last resort, a number of recent Court of Appeal decision have emphasised that such applications demand great care.

In Re S-B (Children) [2015] EWCA Civ 705, the Court of Appeal was concerned with a mother's appeal against an order for indirect contact, and a s. 91(14) order. The s. 91(14) order, it was argued, was wrong because it did not specify which applications the mother was prohibited from bringing. King LJ clarified that such orders should specify what is prohibited and say something to the effect that no application under any provision of the Children Act 1989 may be made in respect of either child.

In Re T (A child: Suspension of Contact: Section 91(14) CA 1989) [2015] EWCA Civ 719, the Court of Appeal was again quick to ensure, in light of the statutory intrusion on a party's right to bring proceedings, that such an application is dealt with fairly and justly. The court below had suspended all contact between the father, who did not attend the hearing, and E aged 4½ and made an order under s 91(14) for 5½ years. Although the father had notice of the hearing, the Court of Appeal found that the court must be satisfied of the following when making such orders:

  1. The parties are fully aware that the court is seised of an application, and is considering making such an order 
  2. The parties understand the meaning and effect of such an order 
  3. The parties have full knowledge of the evidential basis on which such an order is sought 
  4. The parties have had a proper opportunity to make representations in relation to the making of such an order; this may of course mean adjourning the application for it to made in writing and on notice.

The Court of Appeal added that these fundamental requirements obtain whether or not the parties are legally represented. It is suggested that it is even more critical that these requirements are observed when the party affected is unrepresented.

As a side note, the judgment also clarified that in-court conciliation at a FHDRA does not of itself disqualify judges from continuing involvement with the case, particularly as information shared at such a hearing is expressly not regarded as privileged (PD12B FPR 2010 para 14.9).

In K v K [2015] EWHC 1064 (Fam), the President was concerned with a case where the father had made numerous applications concerning the parties' children, M aged 18 and J aged 16, and also in respect of the parties' financial remedy proceedings. There had been three sets of Children Act proceedings over the course of two years, which concluded with dismissals of the father's applications, the court finding them to be devoid of merit. The court made a section 91(14) and accompanying Grepe v Loam (1887) 37 ChD 168 order; a corresponding order preventing the father from bringing financial applications.

Application to extend the time for appealing in family cases relating to children
In Re H (Children) [2015] EWCA Civ 583, the Court of Appeal was concerned with the following issue: when considering an application to extend the time for appealing in a family case relating to children, what regard, if any, should be had by the judge to overall merits of the proposed appeal?

This case concerned care proceedings, but has important implications for all children practitioners. In care proceedings, the court had ordered that three of the four children remain in the father's care under supervision orders, and care and placement orders be made in respect of the fourth child. The father initially sought permission to appeal out of time without reasons for the delay, which was refused on the papers. When the prospective adopters issued an application for adoption some 8 months later the father again sought to appeal the initial decision.

In considering the appeal, the Court made clear that pursuant to FPR 2010, PD 30 A, para 5.4:

'If an extension of time is required for filing the appellant's notice the application must be made in that notice. The notice should state the reason for the delay and the steps taken prior to the application being made.'

Given the father was some 8 months out of time it was necessary for him to apply to extend the time for compliance pursuant to FPR 2010, r 4.1(3)(a). The court must consider rules 4.5 and 4.6 which provide for sanctions to have effect unless the defaulting party obtains relief from the court.

The Court found that the case was exceptional and, in considering all the circumstances pursuant to FPR 2010 r. 4.6 (1), the merits of the appeal were very strong, which warranted a relief from sanction.

McFarlane LJ concluded by saying that it is not the purpose to suggest that the approach in family cases should differ from that applied in ordinary civil jurisdiction; however, clearly where a case has striking merit, and the consequence of an order is at the highest level of intervention, regard will be had to this.

Part 25 applications for expert evidence
In Re C (A child) (Procedural Requirements of a Pt 25 Application) [2015] EWCA Civ 539, the Court of Appeal was dealing with the father's appeal of an order originally made by the magistrates' court that the father 'submit to a full psychological assessment', which provided that the expert instructed should be court accredited, a letter of instruction was to be agreed, and the costs shared equally. There was no Part 25 application. The order was appealed to a circuit judge and was dismissed.

In a lengthy judgment, which sets out the statutory framework and procedure in bringing an application for permission to instruct an expert, Ryder LJ and Aikens LJ  emphasised that section 13 of the Children and Families Act 2014 and Part 25 FPR 2010 now lay down firm statutory and procedural rules that must be applied in respect of expert evidence in family proceedings. It is duty of all family law practitioners and the court to learn, mark and digest these provisions and ensure they are applied rigorously.

The Court of Appeal further made clear that the mandatory order that the father should subject himself to a psychological assessment, a form of medical procedure, was unlawful.

This example demonstrates that the court will not tolerate misguided or ill prepared applications for expert evidence.

This judgment also provides a helpful reminder of the court's duty, as set out in the Crime and Courts Act 2013, when conducting a hearing with a litigant in person. The recommended practice is that litigants in person are sworn at the outset of the hearing, so that their representations can be used as evidence. They should be asked to set out their case, and they should be encouraged by the court to answer any relevant propositions put by the other party. The court should identify the key issues for them and set these out at the beginning or end of the statements they are invited to make.

Applications for permission to apply for a child arrangements order
In Re A (A child – Application for leave to apply for a child arrangements order) [2015] EWFC 47, the court was concerned with A, a 9 year old girl. A was conceived by donor insemination with sperm from a known donor. At the time of conception the biological mother was in a same-sex relationship with H. The mother was diagnosed as suffering from serious mental health problems and was detained under s. 3 of the Mental Health Act 1983. A continued to be cared for by H pursuant to a residence order made by consent. H subsequently formed a relationship with M, a female to male transsexual. H and M then separated. M asserted that he had taken a dominant role in caring for A during their relationship. M applied for permission to make an application for a child arrangements order, which was opposed by the mother, who believed A had suffered whilst being cared for by M.

HHJ Bellamy considered the provision at s. 10(9) Children Act 1989, and Re B (A Child) [2012] EWCA Civ 737 and importantly that the leave provision does not contain a test, only factors for the court to consider. Moreover, whilst the child's welfare was not paramount, it was still relevant.

In granting M permission to make an application for a child arrangements order, the court decided that M had become a psychological parent, and that A would benefit from the extensive range of adult relationships available to A.