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SZ v DG & Ors [2020] EWHC 881 (Fam)

Mostyn J refuses a father’s application for leave to apply for contact with his son subject to a Special Guardianship Order due to s91(14) being in place

This case involved Mostyn J's ruling on the father's application for permission to make an application for contact with his son 'ED'. The child was subject to a special guardianship order in favour of his foster carers made following lengthy care proceedings (see one of the relevant judgments at D (A Child) [2014] EWHC 3388 (Fam). The father required permission to make the present application as, in the course of those proceedings, Mostyn J had imposed a s91(14) order preventing the father from making any future applications without leave of the court.

The background to those proceedings is set out at [3]-[6] of the judgment. The court had made various findings against the father: 'of truly bestial conduct.' Including exploitation of women and girls including grooming his 16 year old step daughter for eventual sexual intercourse and pregnancy. The court determined that the most appropriate order for the child was a special guardianship order to his current carers who would facilitate direct contact with his mother and no contact with the father.

The reasoning behind the s91(14) order is set out at [8]:

"10. I now turn to the question of whether there should be a section 91(14) bar on any application for an order for contact, variation of contact or any other section 8 order. In my judgment I am satisfied that it would be appropriate to make such an order. That would mean that any such applications would be put on the same footing as an application to discharge the special guardianship order itself. That requires the leave of the court. It would put it on the same footing as an application for post-adoption contact, as set out in section 51A(4)(c) of the Adoption and Children Act 2002. In my judgment it is plainly an order that should be made so that the stability of the placement with the special guardians can be guaranteed, or at least, if not guaranteed, assured so far as is possible. It should be understood that an order under section 91(14) carries with it no stigma. It simply requires that the parents, were they to make an application the nature of which I have mentioned, to satisfy a court that they have an arguable case before the special guardians are troubled by the application. In my judgment, on the facts of this case where this is not a conventional special guardianship order (they are normally made in favour of relatives) but is in fact made in favour of carers whose identities shall remain confidential. In my judgment that order under section 91(14) should endure until ED's 14th birthday. In other words until 27 June 2026. After his 14th birthday his own views, were an application to be made for contact, would, in my view, be, if not decisive, then highly influential, and in such circumstances it would not be necessary for the court's leave for an application to be made."

The court considered what had happened since the end of those proceedings in 2015. The father had returned to Czech Republic where he had 3 more children removed from his care and he had a conviction in 2017 for battery and failure to comply with notifications at the Nottingham Magistrates Court. He received a custodial sentence. The offence related to attempting to force the step daughter/mother of his child to return to Czech Republic with him.

In addition to the above, the court in the Czech Republic on 17 October 2019 had returned all three children to the father's care, albeit under state supervision. It was on this basis that the father made his application for permission to seek indirect contact only with ED.

In the equivalent of care proceedings which took place in Czech Republic, F had engaged in a joint psychiatric/psychological report which included a number of negatives and some positives (see [19]). The report concludes that: 'The clinical picture is dominated by personality issues - he is emotionally unstable and dissocial.' However, the report also concluded that it was unlikely that the father would directly expose the children to his impulsive behaviour and emotional instability. It was on this basis and in light of their pre-existing relationship with the father that the children were returned to his care.

The application for permission was opposed by the special guardians who were understandably concerned about the history of the case and the fact that the father may try and find out where ED is living and ultimately to try and ensure that ED is returned to his care. The local authority, who had been given permission to intervene, also opposed the application on the basis of the risk of disruption to the placement, the special guardian's views, and the lack of acceptance by the father of his reprehensible conduct.

Mostyn J considered the applicable law set out in Re S (Permission to Seek Relief) [2006] EWCA Civ 1190 [2007] 1 FLR 482 namely is there an arguable case demonstrating the need for renewed judicial investigation the court.

In the present case, this meant that the court must have regard to changes of circumstances since the order was made; to the risk of destabilisation that the application may bring to the placement of the child with the special guardians; to the views of the special guardians; and to the welfare of the child generally (albeit not as the paramount consideration).

Given that the rationale behind making the s91(14) order in the first place had been to put any application on the same footing as an application for leave to seek to vary the special guardianship order or for post adoption contact by analogy, the court also considered the legal tests for those applications. Those factors include the need to have in mind a significant change of circumstances, and the risk of disruption of the placement of the child.

The learned judge concludes that although the matter is quite finely poised, leave should not be granted.  Mostyn J sets out his reasoning at [32] and [33]:

'I place particular weight on the risk of disruption and on the views of the special guardians. I consider that the negative matters outlined in the Czech psychiatric/psychological report outweigh the positives. In the light of that I am not satisfied that the applicant would make a positive contribution to the well-being of ED.

I am therefore not satisfied, at least at this stage, that the applicant has shown a sufficiently arguable case justifying the intervention of the court.'

Summary by Asha Groves, barrister, St Johns Chambers

Read the full judgment of SZ v DG & Ors [2020] EWHC 881 (Fam) on BAILII