F v M
| Jurisdiction | England & Wales |
| Judge | HAYDEN J |
| Judgment Date | 16 January 2023 |
| Court | Family Court |
Children arrangements – Contact – Parental responsibility – Court’s jurisdiction to extinguish or limit – s 91(14) order to last until both children reached adulthood on basis of risk of physical or emotional harm – Impact of s 91A – No jurisdiction to revoke parental responsibility of married parent – Jurisdiction to severely limit parental responsibility – Justification for order providing for no indirect contact.
The parents had two children together; they separated before the birth of the second child, whom the father had never met. The mother alleged very serious coercive and controlling behaviour by the father, not only in his relationship with her, but also in another relationship. The litigation history was extraordinarily protracted: the proceedings began in October 2017 but the final fact-finding hearing concluded only in January 2021, after six adjournments. The fact-finding judgment set out very serious findings against the father, at the highest end of the index of gravity within the sphere of coercive and controlling behaviour. The findings included emotional abuse of the mother by the father, rape of the mother by the father, and conduct by the father during the relationship resulting in the child being exposed to emotional harm.
On 24 March 2021, about eight weeks after this judgment was handed down, the father issued an application for a child arrangements order, seeking contact with both children. He also applied for a specific issue order changing the surname of the younger child.
On 21 May 2021, the mother’s legal team applied for permission to disclose the judgment and the case papers to the police (the police had previously interviewed the father but a decision had been taken not to prosecute him). The mother’s team sought, in the event that no order for contact was made, an order removing the father’s parental responsibility. As the parents were married, the father had been granted parental responsibility for his children automatically, under s 2(1) of the Children Act 1989. Other sorts of acquisition of parental responsibility were provided for by s 4(1) Children Act 1989; s 4(2)(A) Children Act 1989 stated that: ‘A person who has acquired parental responsibility under subsection (1) shall cease to have that responsibility only if the court so orders’.
Although the mother’s lawyers also sought to disclose the court order to the father’s immigration lawyers, they were apparently not successful in their attempts to ensure that the Home Office was aware of the findings of fact. The father was later granted 30 months limited leave to remain, predicated on his pursuit of the ‘10-year partner route’.
On 11 October 2021, the Cafcass officer filed a report setting out her recommendations. Despite reaching the conclusion that it would not be possible to safeguard the children from the father’s emotionally and psychologically abusive behaviours until he had undertaken behaviour change work, she recommended that there be indirect contact by way of a letter once per year, to the children, to be stored by the mother in a safe place, ‘until such a time that they are able to read his letters’.
The father, arguing that he might have to incriminate himself in order to persuade the family court to allow him contact with the children, then sought an order that any statements or admissions made by him in the proceedings would not be disclosed to the police. The judge dismissed this application in November 2021, the father’s appeal on the issue was dismissed by the Court of Appeal in April 2022 and the Supreme Court rejected the father’s application for permission to appeal the Court of Appeal decision in November 2022.
Despite the delay created by the appeal and attempted appeal, the Cafcass officer was not asked to revisit her report. An attempt in November 2022 to have the listed hearing adjourned by consent was refused by the judge. No application had been made for the court to make a s 91(14) order, limiting the father’s ability to make further applications under the Children Act 1989, but the judge, in advance via his clerk, asked the parents to make submissions on this issue, especially in the context of s 91A Children Act 1989, inserted into the Children Act 1989 in May 2022, pursuant to the Domestic Abuse Act 2021. Section 91A permitted a s 91(14) order to be made where an application under the Children Act 1989 would put the parent or child at risk of physical or emotional harm.
Certain protective provisions were agreed by the parents in advance of the hearing and there appeared to be a consensus as to indirect contact as recommended by the Cafcass officer. The judge heard evidence from the Cafcass officer, as well as from the parents. The Cafcass officer told the court that if the parents had not been married, she would have been recommending revocation of the father’s parental responsibility and, on reflection, decided that this was a case where indirect contact was not appropriate. Ultimately, at the very end of the hearing, the father decided that he would not oppose an order for ‘no indirect contact’ and would also agree to an order under s 91(14), limiting his future applications until the youngest child was 18 years old.
Held, making an order for no contact with the father and also a s 91(14) order to last until the younger child was 18 years old—
(1) It apparently needed to be stated that disclosure of a fact-finding judgment to the police did not require a court order. Unless the court specifically prevented it, the police and CPS were entitled to a copy of a judgment pursuant to Family Procedure Rules r 12.73. The information within that judgment must only be used for the purposes of child protection and/or investigation of crime (see [4], below).
(2) As s 4(1) of the Children Act 1989 applied only if the parents were not married at the time of the birth, the provisions of s 4(2)(A) Children Act 1989 were not engaged and it was not possible to revoke the father’s parental responsibility. Applying MZ v FZ and others[2022] EWHC 295 (Fam), this difference in treatment, predicated on marital status, was justified and was not incompatible with the European Convention on Human Rights. However, as observed in MZ v FZ, society and families had changed very considerably since the introduction of the Children Act 1989 (in October 1991), in ways that had not been contemplated by the statute, and in 2022 it was uncomfortable to realise that the mother could not make an application to divest the father of his parental responsibility entirely due to the fact that she had been married to him when the children were born. Whilst the court found this anomaly of legal status profoundly uncomfortable, it recognised that protection was to be found in the regime of prohibited steps orders and specific issue orders set out in Children Act 1989. Thus, whilst the legal status of a married father remained intact, it could be stripped of any potency to reach into the lives of the mother and children; his ability adversely to affect the welfare of either could be effectively prevented. This was the approach endorsed by the President in Sheikh Mohammed v Princess Haya[2021] EWHC 3480 (Fam) (see [6], [7], below).
(3) The court had found the father to be a serious danger to the physical and emotional safety of women and children. His evidence at this hearing had revealed him, once again, to be narcissistic, arrogant and entirely devoid of empathy for the mother and the children. The court proposed to send a copy of this judgment and its earlier judgments to the Home Secretary for her personal consideration, so that she had the full information before her when making her immigration decision, which remained, of course entirely for her to make (see [13], below).
(4) As set out in Re A (a child) (supervised contact) (section 91(14) Children Act 1989 Orders)[2021] EWCA Civ 1749, the provisions within s 91A Children Act 1989 were transformative, providing judges with a powerful tool with which to protect children, and the parent with whom they lived, from corrosive, demoralising and controlling applications which had an insidious impact on their general welfare and wellbeing and which could cause real emotional harm. It not only recognised the very significant toll protracted litigation could take on children and individuals who might already have become vulnerable, it also recognised that when all other avenues for control were lost, too often the court process became the only weapon available. Lawyers and judges must be assiduous to identify when this occurred, in order to ensure that the court was not manipulated into becoming a source of harm but a guarantee of protection. The protective provisions agreed by the parties did not recognise the opportunities that the litigation had created for the father to exert control over the mother and the children’s lives. The father had found the opportunity to extend his controlling behaviour into the court arena, an approach described as ‘lawfare’ in Re A (a child). The various challenges and obstacles to the smooth and timely resolution of the case, which had been actively harmful to the welfare of the children, had been almost entirely of the father’s making. The father’s application for a change of surname in particular, revealed, at best, an arrogant lack of empathy for the effect that the protracted proceedings had already had on the mother and the elder child and revealed how the father had used the court proceedings as a different facet of controlling behaviour. A s 91(14) order to last until the youngest child was 18; the duration of the order reflected the nature of the identified harm (see [3], [17]–[20], [24], below).
(5) The court made an order for the father to have no contact, including indirect contact, with the children. To understand how uncommon this order was, it was necessary to reflect that when children were received into the care system and...
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