Re J
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson,Lord Justice Dyson |
| Judgment Date | 17 July 2007 |
| Neutral Citation | [2007] EWCA Civ 906 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 July 2007 |
| Docket Number | Case No: B4/2005/1884 |
[2007] EWCA Civ 906
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(MR JUSTICE MUNBY)
(LOWER COURT No. FD03C00844)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Dyson and
Lord Justice Wilson
Case No: B4/2005/1884
THE APPELLANT MOTHER APPEARED IN PERSON BY AUDIO-LINK.
Miss Eleanor Platt QC And Miss Karen McLaughlin (instructed by the London Borough of Kensington and Chelsea) appeared on behalf of the local authority.
THE RESPONDENT FATHER APPEARED IN PERSON.
Ms Sarah Forster (instructed by Messrs Avadis & Co) appeared on behalf of the child by her Children's Guardian.
Mr Paul Hepher appeared on behalf of CAFCASS Legal.
This is another appeal against a prohibitory order in proceedings under the Children Act 1989 (“the Act”) made under section 91(14) of it. The leading authority on the exercise of the jurisdiction to make such orders is now Re S (Permission to Seek Relief) [2007] 1 FLR 482. In paragraph 6 of its judgment, given by Wall LJ, the court said:
“A third application for permission which we had hoped to list at the same time, raised the question of a section 91(14) order expressed to last until the child concerned obtained his or her majority. Unfortunately, the applicant for permission in that case did not pursue it in time for it to be listed with the current applications.”
Our case today is the “third application” to which this court there referred. On 18 August 2006, being by coincidence the date when the judgment in Re S was handed down, Wall LJ and I gave permission for the present appeal to proceed.
The appeal is brought by a mother against an order made under section 91(14) by Munby J sitting in the High Court, Family Division, on 24 June 2005. During the preceding four days he had been hearing applications referable to a boy, J, who was born on 26 November 1992 and who was thus aged 12 and is now aged 14. Tragically J has a severe autistic disorder and a profound degree of special educational needs; and, for example, his power of speech is substantially impaired. Since December 2002 he has been living with his father in London under a care order granted to the Royal Borough of Kensington and Chelsea (“the local authority”). In the proceedings before Munby J the mother was the applicant; and the respondents were the local authority, which were represented by counsel, the father, who was represented by counsel, and J himself, by his guardian, who was represented by a solicitor.
The mother has the considerable misfortune to suffer severe agoraphobia as a result of which she cannot attend court in person. Apart from making a few short visits to shops in its immediate vicinity, she is confined to her home in Earls Court. In June 2005 Munby J conducted the entire hearing by telephone link to the mother and recorded in his judgment that, apart from a couple of occasions when the mother indicated that she was having difficulty in hearing what was said, she had fully participated in the hearing. Towards the end of his judgment, which ran for 71 paragraphs, the judge addressed the local authority's application for an order against the mother under section 91(14) and explained why he proposed to grant it. The order which he made thereunder was to prohibit the mother from making any further application in respect of J under the Act until his 18 th birthday, namely 26 November 2010, without the leave of a High Court Judge of the Family Division and, indeed, of himself if available.
Counsel tell us that their researches have not revealed any reported case in which an order under section 91(14) has been made in relation to a child in care; but, on analysis, not much seems to me to turn on that apparently unique feature. Clearly the judge was of the view that the limited prohibitions on making further applications for discharge of a care order or for an order for contact with a child in care following their dismissal, as set by section 91(15) and (17) of the Act (i.e. not for six months following dismissal, save with leave), represented a wholly inadequate level of protection.
In circumstances which I will explain, this appeal turns only upon the narrow if important point namely, it having been accepted by this court that it was open to the judge in the exceptional circumstances to make an order against the mother under section 91(14), whether it was a proper exercise of his discretion for him to provide that it should endure for what was then more than five years, namely until J's 18 th birthday.
As before the judge, so before us: the mother represents herself. She has participated in today's hearing of this appeal by telephone link and is listening to this judgment as I deliver it. She has made two long written presentations of her case to this court by e-mail, namely on 17 August 2006 and 13 July 2007. In that regard I should record that last Friday, 13 July, in order to protect the mother from being bombarded by late skeletons filed by other parties, I directed that no further skeleton arguments should be filed or served. It was not a direction which was intended to preclude the filing and service of a skeleton argument by the mother herself; and I am glad that she decided to disobey the ostensible terms of it. The argument which she filed later on 13 July has been extremely helpful; and today she has addressed us at fair length and, if I may so, with great articulacy and civility. Present in court to oppose the appeal have been leading counsel for the local authority and counsel for J himself by his guardian. The father, appearing in this court in person, has added his opposition to the appeal. When it gave permission to the mother to bring this appeal, this court invited CAFCASS Legal to appear as advocate to the court, just as it had appeared in Re S. Very conveniently, CAFCASS Legal instructed Mr Hepher to appear on this appeal, just as he had appeared on its behalf in Re S; and we are indebted to him for the helpful and consistently neutral way in which he has offered an analysis of the issues thrown up by the length of the judge's order.
As I will show, the context of a number of the statements of principle in Re S is the making in private law proceedings of orders under section 91(14) against parents, usually fathers, who, notwithstanding protracted efforts on their part and often also on the part of the court, have not been afforded any contact with their children. Happily the present situation is different. Under arrangements made by the local authority pursuant to their duty under section 34(1) of the Act to allow a child in care reasonable contact with his parents, J goes to visit the mother about every fortnight for about five hours on an unsupervised basis; and there is much evidence to suggest that the relationship between them is close and valuable to both of them. The mother, however, has a profound sense of grievance that J is not residing with her but, instead, resides with the father, whom she regards as wholly unfit to care for him. And, although today she has stressed to us that she accepts that J will never return to her care, there have been, according to the evidence, many other occasions upon which she has indicated that her aspiration, even if to be achieved only after a proposed appeal to the House of Lords and/or an approach to the European Court of Human Rights in Strasbourg, is to obtain residence of J. Indeed, early on in the hearing this morning, she told us in terms:
“I am going to carry on until the truth is out.”
The mother feels bitterly betrayed by the legal system in England; and she has no respect whatever for many of the professionals, including in particular the officers of the local authority, J's guardian, his solicitor and her own previous lawyers, who have played a role in the proceedings which, to date, have brought her nil satisfaction. In a wise paragraph of his judgment Munby J indicated that the court should not be carried away by the abusive and unpleasant language sometimes deployed by the mother in relation to these professionals. Although it is proper for me to record that, in an e-mail to this court in October 2006, she accused J's guardian and solicitor of having—for example—perpetrated “emotional rape” upon her, and although the court cannot on any view condone language of that sort, it is, at the risk perhaps of my being unduly indulgent to the mother, only a sign of the desperation and frustration which she feels.
The parents were married in February 1991 and, although there is some reference in the papers to separation on the day of marriage itself, they obviously got together thereafter, if only to achieve the conception of J. But in January 1993, within six weeks of J's birth, litigation began between them in respect of J; for the mother then obtained a prohibited steps order against the father's removal of J from her. In the following six years there were at least ten hearings in private law proceedings between them referable to residence, contact, prohibited steps and to alleged breaches of such orders. Ultimately, in October 1999, residence of J was definitively awarded to the mother; and, so she has told us today, an order was made against the father under section 91(14) of the Act so as to prohibit applications on his part thereunder referable to J for three years.
In the event J was to remain living with the mother only for about 18 months. During that time there were on any view positive features of the mother's care for J, in particular in relation to her struggle to see that the...
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