Re A (A Minor) (Contact: Parent's Application for Leave)
| Jurisdiction | England & Wales |
| Judgment Date | 1999 |
| Year | 1999 |
| Date | 1999 |
| Court | Court of Appeal (Civil Division) |
Children – Order prohibiting parent from making further applications under Children Act 1989 without leave – Application by parents for leave to apply for contact order – Test to be applied – Children Act 1989, ss 10, 91(14).
The parents, who had three children, were divorced in 1986. After a great deal of highly contentious litigation custody of the children was vested in the father in 1988. At that stage an access (contact) order was made in favour of the mother. In 1992 the mother applied for a residence order. Dismissing that application and terminating contact the judge imposed an order under s 91(14) of the Children Act 1989 prohibiting the mother from making further applications under the 1989 Act without the leave of the court. Subsequently the two elder children moved to the mother’s home. The mother wished to have contact with the youngest child and sought leave to apply for a contact order. The judge proceeded on the basis that, since he had an application for leave under s 91(14), he had to apply the criteria set out in s 10(9) of the 1989 Act and dismissed the application. The mother appealed.
Held — An application for leave under s 91(14) of the 1989 Act was a distinct application which was not subject to the s 10(9) criteria, and when considering such applications the court had to apply the simplest of tests, namely whether it was demonstrated that there was a need for renewed judicial intervention. If so, then leave should be granted. All that the court committed itself to in granting leave was to considering the material presented in the form of statements supporting the substantive application and probably the contents of a welfare report. The granting of leave involved no pre-judgment of the eventual outcome. In the present case, the judge had misdirected himself in adopting the test in s 10(9). In particular, although in surveying welfare he had to consider the risk of harm to the child by the proposed application, he had wrongly regarded the risk consideration as determinative. The appeal would be allowed.
Cases referred to in judgmentsG (child case: parental involvement), Re[1996] 2 FCR 1, CA.
JR v Merton London BC[1992] 2 FCR 174; sub nom Re A and W (minors) (residence order: leave to apply) [1992] Fam 182, CA.
M (minors) (contact: leave to apply), Re[1995] 3 FCR 550, CA.
AppealThe mother of three children appealed from a decision of Assistant Recorder Glancy QC made on 9 June 1997, whereby he refused the mother’s application for leave to apply for a contact order in respect of her youngest child, such leave required by virtue of an order made by Judge Wilson, pursuant to s 91(14) of the Children Act 1989, prohibiting the mother from making an application without the leave of the court. The facts are set out in the judgment of Thorpe LJ.
Elizabeth Woodcraft (instructed by Bhatia Best Solicitors, Mansfield) for the appellant.
Stephen Barstow (instructed by Aplin Stockton Fairfax, Banbury) for the respondent.
THORPE LJ(giving the first judgment at the invitation of Hirst LJ). Mr and Mrs A married in 1976. They had three children, E who is 20, C who is 18 and A who is 13. They separated in September 1984. The marriage was dissolved in June 1986. An order was made in the suit in 1987 giving joint custody to both parents, care and control to the mother, access to the father. There was a great deal of highly contentious litigation and plain disobedience on the part of the mother with orders of the court. Care and...
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