![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Family Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> P v F [2023] EWHC 2730 (Fam) (30 October 2023) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2023/2730.html Cite as: [2023] EWHC 2730 (Fam) |
[New search]
[Context]
[View without highlighting]
[Printable PDF version]
[Help]
![]() ![]() ![]() |
||
FAMILY DIVISION
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
P |
Appellant |
|
- and - |
||
F |
Respondent |
____________________
The Respondent did not appear and was not represented
Hearing date: 5 September 2023
____________________
Crown Copyright ©
Mr Justice MacDonald:
INTRODUCTION
i) The judge was in error in making a final Child Arrangements Order at a Dispute Resolution Hearing when the applicant was clearly not consenting to a final order for no direct contact being made;
ii) In circumstances where the applicant did not agree to a 'no direct contact' order and challenged the CAFCASS report, the hearing was conducted in breach of his right to a fair trial under the European Convention on Human Rights, Art6.
iii) The imposition of an order under the Children Act 1989, s. 91(14), preventing further applications, was wrong in circumstances where none of the procedural requirements necessary to establish a fair process with respect to a litigant in person were followed (see Re C [2009] 2 FLR 1461) and the judge gave no judgment in support of making the order.
BACKGROUND
"[The father]'s thought processes are fixed and rigid. He cannot be persuaded that an alternative narrative to his own exists and when confronted by this, for example with the wishes and feelings of his own children, he dismisses them outright and lays the blame firmly with [the mother]. He is unable to make a link between his own behaviour and presentation with how his children feel about spending time with him. I do not doubt [the father] loves his children, but he is not able to filter his own views, thoughts, opinions or language. His children have been, and would continue to be, exposed to his negative and derogatory view of their mother and authority if contact were to resume."
"JUDGE: Well, I do not know if you both knew, but this is called a dispute resolution appointment. It is not a final hearing. So, what I have to try and do is resolve the dispute if I can. If I cannot, you go to a final hearing, which in this case would be before another judge. Right?
APPLICANT: Mmm hmm.
JUDGE: And what I have to try and do is see if there is any middle ground, so I would not worry too much about lack of a solicitor for today. If you proceed with your application because you want whatever it is you want to ask me in a minute. You will have plenty of chance to get a lawyer for that.
APPLICANT: I haven't got any money for anything, so.
JUDGE: Well that is a different issue. With that I cannot help you I am afraid.
APPLICANT: I will have to represent myself, yeah. I was hoping today would just be let's get this resolved and because it's gone on for too long now, because I haven't seen my children since May, obviously you've seen on the report. Due to their wellbeing, safety, mental health, and myself, I think it needs to get resolved sooner than later. In this case obviously there's loads of flaws in the report as well, so false allegations obviously you've seen. When I went to the court, I got a not guilty for everything, so she's trying to use that to say I'm a bad person, but I'm nowhere near a bad person. And obviously it's already proven in a legal court that I'm not guilty for all the things what have been said."
"JUDGE: You will I am sure appreciate that there is simply no way I can make an order in your favour, reading a Cafcass report like this.
APPLICANT: There's no evidence saying that I'm this person or anything that resembles it.
JUDGE: It is a combination of what the children are saying and the Cafcass view that they are not in any way being coached to say it. This is what at the moment they think and feel.
APPLICANT: Yeah.
JUDGE: And they have changed their minds. Cafcass think they have changed their minds because they have been exposed to the way you have gone about things.
APPLICANT: Because obviously I'm ---
JUDGE: Now, as I say, I cannot in your case today ---
APPLICANT: But you can understand where my frustration's coming from, can't you? Obviously.
JUDGE: --- and I would not want to, and you will appreciate it will not be me, so I can say more than I normally do. The trouble is that, you know, I think you have to change your approach before you have any chance here.
APPLICANT: Well I haven't made any approach. This is what I'm irritated about and this is why Cafcass obviously haven't fulfilled their duties basically. This is what I'm trying to say. Yeah they got 20 years, 30 years, 50 years' experience, but speaking to my children for 20 minutes at 11 years old, it doesn't explain how they're basically trying to tell me how they know my children better than I do. I'm like I'm a 35 year old. I'm just a normal person. I've never been in trouble before. I'm just normal and I just want this stuff over and done with to be fair. I've had enough now. It's been a long time, so I need it over and done with. They suffer more, I suffer more."
"JUDGE: Well the only way I could end it today would be with no order in your favour. If you want me to do that, I will, but I would not deny you your chance in court if that is what you want.
APPLICANT: What does that mean, sorry sir?
JUDGE: Well, if I make a final order today, which I can do ---
APPLICANT: Yes please.
JUDGE: --- it can only be along the lines of what Cafcass are suggesting, which is no time with the children, and indeed Cafcass are saying make an order which stops you bringing any future application for a couple of years. That is what they mean by a section 91(14).
APPLICANT: That's not ---
JUDGE: Now I cannot do that just sitting here talking to you. A judge would have to hear evidence, hear submissions, hear from the Cafcass officer and make a decision. That is not the purpose of this hearing. It is a dispute resolution appointment.
APPLICANT: Appointment?
JUDGE: The only way I can resolve it is by agreement and that would be to make the final order that Cafcass recommends."
"JUDGE: I am genuinely sorry for you here. There is nothing that I can offer you and I suspect that there is nothing at court that a final hearing could offer you.
APPLICANT: I can't see how we're going to resolve this then. She's won, hasn't she? Women win. She's won. I've lost my kids. That's the bottom line, isn't it?
JUDGE: The bottom line today, the only order I could make would be no order except Christmas presents, cards, through your parents and the report from [the mother] once every three months on the progress.
APPLICANT: Well we can't make an order then, unfortunately. I don't know what we're going to do.
JUDGE: Well I will just put it forward for a final hearing, get a statement from each of you as to what you want to happen and why. You send that in a week before the hearing.
APPLICANT: I've already made ---
JUDGE: I mean would there be any witnesses you want to call to support your case?
APPLICANT: I don't know how you can have witnesses on this.
JUDGE: Well I think that is probably right, yes.
APPLICANT: But when I come in today, I made to myself that it has to be resolved today, there's no final hearing, there's no adjourning, there's none of this rubbish. Due to their welfare, and the kids, and the whatever, it just needs to be resolved. I don't know why [the mother] can't just say it and we just get back to how it was."
"JUDGE: No, look, I am going to put to you your options. Final order or trial, which do you want?
APPLICANT: What could trial do?
JUDGE: Sorry?
APPLICANT: What's a trial?
JUDGE: Well, at a trial, you would give evidence. [The mother] would give evidence. If you wanted to call a witness to support your case that would be fine. You would tell me who the witness would be and what they would tell the judge. You get a chance to ask questions of the Cafcass officer and then the judge would reach a decision.
APPLICANT: And a final hearing is basically ---
JUDGE: It will not be me.
APPLICANT: Yeah.
JUDGE: As I am leaving this court centre.
APPLICANT: OK.
JUDGE TOLSON: But that allows me to say more than I would normally say on these occasions and that is I cannot at the moment see any other outcome but the one that Cafcass suggest. Now, the things that you said to me about wanting to end today and so forth --
APPLICANT: End what sorry? I really struggle with my hearing.
JUDGE: The things you have said today about wanting the case to end.
APPLICANT: The case to end, yeah, and just get it over and done with and just let me see my kids again.
JUDGE: Well I know, and if that is what you want, that is fine, but it will be an order in line with the Cafcass recommendation.
APPLICANT: Well it's just me not to see my children again.
JUDGE: But if you want me to put it off to a trial, I will do that. You have got a choice, but it is the only choice I can offer you.
APPLICANT: But before it's always been final hearings, so what's best? We go for the final hearing. I can't see how a trial is going to do anything, because of a witness. What witness? There's no witnesses.
JUDGE: I do not know. You know, it is up to you. I really do feel sorry for you."
"APPLICANT: I just can't believe how it's ending. It's not how it should end, and [the mother] knows as well, it shouldn't end like this. I might as well just give up.
JUDGE: What do you want me to do?
APPLICANT: I give up.
JUDGE: OK.
APPLICANT: There's nothing I can do now, is there?
JUDGE: Well, I am sorry, but I will then make a final order in line with the Cafcass recommendation. All right.
APPLICANT: So the final order is me not to see my children ever again?
JUDGE: I will not say that.
APPLICANT: Well that's what the Cafcass report says.
JUDGE: It is pretty grim, yes.
APPLICANT: So what's the reasons why I can't see my children? There's no actual reason. There's no reasons at all why I can't see my children.
JUDGE: The reasons are they do not want to see you, first; and secondly ---
APPLICANT: Like I've already explained ---
JUDGE: --- there is no evidence that that is the fault of anything that their mother has done. There is good evidence that it is the product of their ---
APPLICANT: I don't think you understand, sir.
JUDGE: --- being exposed to a frightening side of you, which you need to think about."
And
"JUDGE: Well I am sorry, but what I am going to do is I am going to end the hearing now with you telling me you want a final order and not a trial.
APPLICANT: Do you think that's the best option?
JUDGE: I do, yes, but it is not for me to advise you.
APPLICANT: Well if that's what you think is the best option, then we'll go for that then.
JUDGE: Yes, but I look at things from the point of view of the children.
APPLICANT: The point of what sorry?
JUDGE: I also suspect it is probably best for you, because I cannot see another outcome. I think you would come back here in 2 months' time, and you would find it very frustrating because you would not have a case, is what I think. But it is up to you. As you say, you are in your thirties now. You make the decision. I do not make the decision as to whether you want a trial or not.
APPLICANT: What do you think I should do, a trial or a hearing? I haven't got a solicitor, so I need some other advice, don't I?
JUDGE: That might be good for you, yes.
APPLICANT: Yeah, but I've spent 11, 12 grand on court. I haven't got no money left.
JUDGE: OK.
APPLICANT: I don't know what to say.
JUDGE: Well I am going to have to ask you for a decision.
APPLICANT: A trial is exactly the same as a final hearing isn't it, technically?
JUDGE: Yes.
APPLICANT: So we'll just go for a final hearing. It's exactly the same thing, isn't it?
JUDGE: Yes.
APPLICANT: OK, we'll just go for whatever's next then, the next thing to do in line. Can I speed it up? Speed it.
JUDGE: No, I could not get you in. The lists are really crowded, lots of other cases."
"APPLICANT: Well it's a bit of a pointless thing, isn't it? Yeah, so what happens now then? That's it?
JUDGE: That is it if I make a final order, yes, which I think is what you are asking me to do.
APPLICANT: I think that's the next thing, isn't it? To do a final, make a final order so I can see my kids.
JUDGE: Yes.
APPLICANT: Yeah. I want to see them, yeah.
JUDGE: Thank you. Well then, I am going to conclude this hearing. All right. I am going to ask you to leave, if you would be so kind. Thank you.
APPLICANT: All right, yeah. I'll have to wear my hearing aid next time I come in, because I can't hear a word you're saying sometimes.
JUDGE: Oh sorry. Thank you."
"1. The father has applied to enforce stipulations in an order made on 7 May 20221 under PE20P00104.
2. Cafcass has reported under section 7 of the Act. The conclusion of the Cafcass officer is adverse to the father, recommending no direct 'time with' arrangements and only the barest arrangements for indirect contact. A full reading of the report is necessary to understand such a bleak outcome.
3. The father vacillated, but ultimately elected not to proceed to trial, understanding that any final order made without a trial would have to be in accordance with the Cafcass recommendations."
"4. Child Arrangements. The Child Arrangements Order made on 7 May 2021 under PE20P00104 is discharged.
5. The children shall live with their mother.
6. There is no order for the children to spend time with their father.
7. The father may send Christmas and Birthday presents and cards to the children. He must so do via the paternal grandparents or some other third party to whom the mother has given express permission in writing to carry out this role.
8. The mother shall send directly to the father or via either a parenting app such as www.appclose.com/co-parenting or the paternal grandparents an appropriately redacted report as to the children's progress. She shall do so at least once every three months.
9. The mother shall facilitate to the best of her ability any wish expressed by either child to communicate with their father.
10. Section 91(14) of the Children Act 1989. No application for an order under the Children Act 1989 in respect of these children shall be made by the father without the leave of the court for a period of 2 years.
11. This is a final order concluding these proceedings."
THE LAW
"Dispute Resolution Appointment (DRA)
19.1 The Court shall list the application for a Dispute Resolution Appointment ('DRA') to follow the preparation of section 7 or other expert report, or Separated Parenting Information Programme (SPIP) (or WT4C in Wales), if this is considered likely to be helpful in the interests of the child.
19.2 The author of the section 7 report will only attend this hearing if directed to do so by the Court.
19.3 At the DRA the Court will –
(1) Identify the key issue(s) (if any) to be determined and the extent to which those issues can be resolved or narrowed at the DRA;
(2) Consider whether the DRA can be used as a final hearing;
(3) Resolve or narrow the issues by hearing evidence;
(4) Identify the evidence to be heard on the issues which remain to be resolved at the final hearing;
(5) Give final case management directions including:
(a) Filing of further evidence;
(b) Filing of a statement of facts/issues remaining to be determined;
(c) Filing of a witness template and / or skeleton arguments;
(d) Ensuring Compliance with Practice Direction 27A (the Bundles Practice Direction);
(e) Listing the Final Hearing."
"Article 6
Right to a fair trial
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court."
"Article 8
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"91. Effect and duration of orders etc.
…/
(14) On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court.
For further provision about orders under this subsection, see section 91A (section 91(14) orders: further provision).
…/"
"91A. Section 91(14) orders: further provision
(1) This section makes further provision about orders under section 91(14) (referred to in this section as "section 91(14) orders").
(2) The circumstances in which the court may make a section 91(14) order include, among others, where the court is satisfied that the making of an application for an order under this Act of a specified kind by any person who is to be named in the section 91(14) order would put—
(a) the child concerned, or
(b) another individual ("the relevant individual"),
at risk of harm.
(3) In the case of a child or other individual who has reached the age of eighteen, the reference in subsection (2) to "harm" is to be read as a reference to ill-treatment or the impairment of physical or mental health.
(4) Where a person who is named in a section 91(14) order applies for leave to make an application of a specified kind, the court must, in determining whether to grant leave, consider whether there has been a material change of circumstances since the order was made.
(5) A section 91(14) order may be made by the court—
(a) on an application made—
(i) by the relevant individual;
(ii) by or on behalf of the child concerned;
(iii) by any other person who is a party to the application being disposed of by the court;
(b) of its own motion.
(6) In this section, "the child concerned" means the child referred to in section 91(14)."
13A.2 These circumstances can also include where one party has made repeated and unreasonable applications; where a period of respite is needed following litigation; where a period of time is needed for certain actions to be taken for the protection of the child or other person; or where a person's conduct overall is such that an order is merited to protect the welfare of the child directly, or indirectly due to damaging effects on a parent carer. Such conduct could include harassment, or other oppressive or distressing behaviour beyond or within the proceedings including via social media and e-mail, and via third parties. Such conduct might also constitute domestic abuse. A future application could also be part of a pattern of coercive or controlling behaviour or other domestic abuse toward the victim, such that a section 91(14) order is also merited due to the risk of harm to the child or other individual.
"3. Procedure
3.1 Under section 91A, a section 91(14) order may be made by the court of its own motion. If at any stage of the proceedings the court is considering making such an order of its own motion, it should record this fact in an order, together with any related directions (see, for example, paragraph 3.5).
3.2 An application for such an order may also be made by an individual who alleges a risk of harm from a future application, or by or on behalf of the child to whom the application would relate, or by another party to the application being disposed of.
3.3 If an application is made, the Part 18 procedure should be used. The application may be made in writing using Form C2, or orally during the hearing.
3.4 Under section 91(14), an order may only be made when disposing of another application under the Act, but section 91(14) is silent on when an application for such an order may be made. In proceedings in which risk of harm is alleged or proven, including but not limited to domestic abuse, the court should therefore give early and ongoing consideration to the question of whether a section 91(14) order might be appropriate on disposal of the application, and to whether any particular findings of fact will be needed to determine the section 91(14) application.
3.5 If an application is made, or the court is considering making an order of its own motion, the court should also consider what opportunity for representations should be provided to the parties. Courts should look to case law for further guidance and principles.
3.6 If the court decides to make a section 91(14) order, the court should give consideration as to the following matters:
a. the duration of the order (see section 4);
b. whether the order should cover all or only certain types of application under the 1989 Act;
c. whether service of any subsequent application for leave should be prohibited until the court has made an initial determination of the merits of such an application (see section 6). Such an order delaying service would help to ensure that the very harm or other protective function that the order is intended to address, is not undermined; and
d. whether upon any subsequent application for leave, the court should make an initial determination of the merits of the application without an oral hearing (see section 6)."
"Where the parties are both or all in person, there is a powerful obligation on any court minded to make a s 91(14) order to explain to them the course the court is minded to take. This will involve the court telling the parties in ordinary language what a s 91(14) order is; and what effect it has, together with the duration of the order which the court has in mind to impose. Above all, unrepresented parties must be given the opportunity to make any submissions they wish about the making of such an order, and if there is a substantive objection on which a litigant wishes to seek legal advice the court should either normally not make an order; alternatively it can make an order and give the recipient permission to apply to set it aside within a specified time."
DISCUSSION
CONCLUSION