N (Section 91 (14))
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MUNBY |
| Judgment Date | 25 November 2009 |
| Neutral Citation | [2009] EWHC 3055 (Fam) |
| Court | Family Division |
| Date | 25 November 2009 |
| Docket Number | Case No: FD03P02333 |
[2009] EWHC 3055 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(In Private)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Munby
(Sitting as a Judge of the Family Division)
Case No: FD03P02333
In the Matter N (A Child)
Dr Michael Pelling for the Applicant (father) (pursuant to leave of the court granted under section 27(2) of the Courts and Legal Services Act 1990)
Mr David Holden for the First Respondent (mother) (pursuant to leave of the court granted under section 27(2) of the Courts and Legal Services Act 1990)
Ms Shelagh Farror (instructed by Goodman Ray) for the Second Respondent (child)
No hearing : matter decided on the papers by agreement of the parties
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was handed down in private but the judge hereby gives leave for it to be published in this form
Lord Justice Munby (sitting as a judge of the Family Division):
I handed down my final judgment in this matter on 17 July 2009: Re N, A v G and N [2009] EWHC 1807 (Fam), [2010] 1 FLR xxx. On 6 August 2009 I handed down a supplementary judgment dealing with questions of costs and leave to appeal: Re N, A v G and N [2009] EWHC 2096 (Fam), [2010] 1 FLR xxx. I refused the father leave to appeal: ibid at para [72]. He renewed his application to the Court of Appeal. Wilson LJ refused him leave on 10 November 2009: Re A (A Child) [2009] EWCA Civ 1249.
I do not propose to rehearse or even to summarise any of those judgments. I take them as read. Anyone who may hereafter have occasion to read this judgment should first read all three of them.
For present purposes it suffices to draw attention to the following quotations. I go first to Re N, A v G and N [2009] EWHC 1807 (Fam), [2010] 1 FLR xxx, and the passages where I set out the guardian's views. In paragraph [17] I quoted what the guardian had said in July 2008:
"Examination of the papers reveals a wholly deplorable situation. N is a young boy who has two parents who love him but who have demonstrated an unwillingness or inability to put his needs first and who as a result of their relentless pursuit of their own agendas have caused him emotional harm and arguably that emotional harm is significant. This situation cannot be permitted to continue. The parents need to stop trying to score points against each other and examine instead their own actions to ensure that N and his needs are put first."
In paragraphs [70]-[72] I set out the guardian's more up-to-date views:
"She has in mind N's oft stated desire for the litigation to come to an end so that he is not the focus of dispute between his parents. In her view, continuing litigation by either parent can only be detrimental to his welfare. There is no benefit to N in continuing litigation. On the contrary, she is clear that his welfare is being damaged by the on-going acrimony and the consequent stress and anxiety that the litigation causes to his parents.
For that reason the guardian would suggest that now is an appropriate time for a section 91(14) order to be made, and for at least two years, this being, she says, "essential" to N's future well-being. This will give N and his parents a breathing space to focus and concentrate on making the agreed arrangements set out in the consent order work, without the anxiety of ongoing proceedings or the constant stress of the threat of further litigation, and to focus and concentrate on making the time that N spends with each parent as enjoyable and stress free as possible.
In support of her contention that there should be a section 91(14) order the guardian makes a number of further points which, as it seems to me, have a very profound and much wider significance:
(i) There have been continuous proceedings concerning N's residence and contact since the father issued his first application in November 2003 when N was aged 2 1/2. N has therefore spent most of his childhood subject to the uncertainties, tensions and effects that the litigation has had upon him and his parents and their care of him.
(ii) N has demonstrated stress and anxiety beyond his years. He has pleaded with his school, with Ms JJ, the independent social worker, and with the guardian that he wanted the fighting to stop and the judge to stop "the trouble". Ms JJ's concerns about the parents, in the context of this "highly antagonistic litigation" having the capacity to undermine N's wellbeing, were such that she was even considering whether the case was more appropriately a public law case."
In that judgment, as in the following judgment, I expressed criticisms of both parents, as, indeed, had the guardian. But my criticisms of the father were more serious. Thus in paragraph [83] I said this:
"Sadly the father is simply deaf to any message but his own. His reaction to the guardian's wise words, and the tone in which he chooses to present his most recent submissions … is a depressing and revealing commentary on his whole approach. Not merely, and most importantly, on his continuing failure to prioritise N's welfare over his (the father's) animus against both the mother and the guardian – indeed his animus against anyone who does not agree with him – but also on his relentless determination to pursue the litigation, as long as it takes, and by pressing every point, however trivial, technical or pettifogging, until he eventually has his way."
My overall approach was set out in paragraphs [202]-[203]:
" … it is high time that these parents –both of them – began to take several and joint responsibility as parents for N's future. Parental responsibility, as defined in section 3 of the 1989 Act is not merely a platform for litigation, let alone for endless applications to the court of the kind pursued so relentlessly and for so long by the father. It is "all the rights, duties, powers, responsibility and authority" (emphasis added) which by law … a parent has in relation to their child. These parents – the father in particular – need to shoulder the burden of their parental duties and parental responsibilities. They have an obligation – a moral and parental obligation; not merely a legal obligation – to their son (never mind their obligation to the court) to discuss between themselves and to decide how he is to live and how he is to be brought up. They merely abdicate that responsibility if they come to court, particularly in relation to matters as comparatively trivial as some of those on the father's list. And what do they imagine their son thinks of them, what do they imagine their son will think of them in future, as a teenager and later as an adult?
… the more the court is drawn into the process of imposing solutions which the parents are unwilling or unable to agree themselves, especially the more trivial the issues to be resolved, the more impotent the parents will become in arriving at their own solutions, the more they will come to rely upon the court as a crutch, as a provider of answers to any and every question, however trivial. Far from encouraging them to assume the parental responsibilities which nature and the law have imposed upon them, and them alone, the court if it allows itself to be cajoled down this road will simply be encouraging them to avoid, indeed to shirk, their responsibilities. And how long is this process to continue? N is only a little over 8 years old. Is the court to remain involved until he is 16 or 18? Certainly not!
… there is the effect of all this on N. I need not repeat what the guardian has repeatedly, insistently and correctly said. Unless the court now disengages, and, more importantly, unless his parents now buckle down to the twin tasks of making the consent order work and, where appropriate, of giving it the necessary consensual 'tweaking', the future for N will, I fear, be bleak. For unless the parents do now buckle down, unless the court declines – resolutely and with immediate effect – to arbitrate where the parents refuse to agree, even though they can and should be able to agree, the process will continue until N simply 'votes with his feet', perhaps, and worst of all, until he abandons them both, pronouncing a 'plague on both your houses.'
There must be an end to this and the time is now ripe – some might think over-ripe – for that step to be taken and for the court to decline to adjudicate further on these issues. In my judgment I would be failing in my duty were I to tolerate the further procrastination which will be the inevitable consequence of a failure on my part to act decisively – and to do so here and now."
As I have said, the father's application for leave to appeal was refused by Wilson LJ. The father sought to challenge my decision on no fewer than 18 grounds. All were dismissed by Wilson LJ as being "unarguable" and numbers 1–13 as being "totally without merit" within the meaning of CPR 52.10(5): Re A (A Child) [2009] EWCA Civ 1249 at para [21]. In relation to ground 1 Wilson LJ described (para [9]) the father's "perpetuation of this entirely sterile argument" as "an abuse of the process of both courts." In relation to ground 2 he described the application to me as being in his view (para [10]) "a gross example of the attempted generation of litigation for litigation's sake", "mischief-making on the part of the father" and "a disgraceful attempt to stir up trouble" and the further attempt to ventilate the issue in the Court of Appeal as "almost laughable." In the course of his judgment Wilson LJ also referred (para [3]) to "the father's astonishing attitude to this litigation", (para [5]) to "the extreme level of stress which the father has placed upon [the...
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