Re P and N (s 91(14): application for permission to apply: appeal)
| Jurisdiction | England & Wales |
| Judge | COBB J |
| Judgment Date | 27 February 2019 |
| Neutral Citation | [2019] EWHC 421 (Fam) |
| Court | Family Division |
Children arrangements – s 91(14) order – Application for permission to issue s 8 proceedings granted – Procedure to be used – Relevant considerations in this case – Whether respondent ought to have opportunity to make submissions if applicant’s case arguable.
Private law proceedings in relation to the two children began in 2013, shortly after the parents’ separation. In January 2015, following a fact-finding hearing in which the judge found as a fact that the father had shaken the younger child as a baby, a district judge determined, exceptionally, that it was in the children’s best interests that the father should have no further direct or indirect contact with the children, then aged four and two. Within months the father made a second application for a child arrangements order. In July 2016, this application was dismissed and the judge imposed a s 91(14) Children Act 1989 order, prohibiting the father from making any further s 8 applications without obtaining the court’s prior permission; this order was to last for three years. The judge made a number of findings, including that the father had acted ‘inappropriately throughout the court hearing to include using foul and extremely abusive language towards counsel for the mother and towards the judge’, that the father had not stopped using foul language when warned of the risk of contempt, and ‘that he had to be removed from the court by security staff’. The judge expressed his view that unless and until the father engaged the services of medical/therapeutic or child care professionals in dealing with the issues, any application for permission to issue a child arrangements order application was likely to be unsuccessful. For extended periods of time, the father was subject to non-molestation orders to protect the mother and children.
The father applied for permission to issue fresh court proceedings in December 2016; this eventually led, in January 2018, to the judge ordering limited indirect contact in the form of cards, making a six-month family assistance order and appointing the guardian as the relevant officer to work with the family; the focus of the family assistance was to be life story work with the children. Just over 10 weeks later, in March 2018 the father made yet another application for permission to issue court proceedings. The court office mistakenly sent a copy of the notice of the permission hearing to the mother’s solicitors, who responded questioning this procedure and setting out concerns about the costs of any further proceedings. The court office replied, confirming that the notice should not have been sent and stating that only if the application for leave to apply succeeded would further applications and orders be served on the mother.
The oral permission hearing took place on 8 June 2018: the only fresh material was a short report from the Cafcass officer, stating that little had changed in the overall ‘position and mood of the parents’ and the father’s skeleton argument, making a number of assertions about improvements. The report from the Cafcass officer included copies of messages from the children, in which they expressed their views, which were essentially hostile to the father. Neither the solicitor for the children (the children were publicly funded) nor the guardian was present; no provision had been made for the mother to attend or be heard. The judge made an order on 28 August 2018 granting the father permission to issue fresh proceedings.
The mother appealed, arguing that the judge had been wrong to grant the father’s application without hearing from her or receiving her representations.
Held – (1) Nothing in the Children Act 1989 or the FPR 2010 specifically prescribed how the court should approach an application for permission to apply for an order under the 1989 Act, following the imposition of a s 91(14) order. A judge sitting in the Family Court generally enjoyed a wide spectrum of procedure when determining applications under the CA 1989, applying Re B (minors) (contact) [1994] 2 FLR 1. This was not an application to which s 10(9) of the 1989 Act applied, as the father would have been ‘entitled’ (s 10(4)(a)) to apply for an order were it not for the court-imposed restriction. Section 1(1) and s 1(3) of the CA 1989 did not apply to an application for permission to apply for an order, although the welfare of the child would be a relevant consideration. The court should, however, have some regard to the ‘overriding objective’ of family court process, and the obligations arising under r 1 FPR 2010 – in particular to deal with application ‘justly’, ‘fairly’, ‘ensuring that the parties are on an equal footing’ and ‘saving expense’ (see [10], below).
(2) A judge was therefore not precluded from granting permission to issue Children Act proceedings to an applicant who was subject to a s 91(14) order, on a ‘without notice’ basis. However, the circumstances in which permission would be granted following the imposition of a s 91(14) order without notice to the respondent should be very rare indeed. The appropriate procedure for a court to follow when presented with such an application was that clearly laid out in Re S[2006] EWCA Civ 1190, namely that the application should be considered ‘in the first instance’ on the papers, or at an oral hearing, which could be ‘without notice’ to the respondent, particularly if there were concerns about the effect on the respondent of learning of a fresh application. An applicant seeking an oral hearing should not be denied this. If the application was without merit, it could be dismissed at that stage, and the potential respondent might well have been spared any engagement with the process. However, if the application showed sufficient merit (ie the applicant had demonstrated a prima facie case that there was a need for renewed judicial investigation, on the basis of an arguable case), the court should list the application for an ‘on notice’ hearing to allow the respondent to make representations. This approach was strongly supported by the following considerations: the grounds laid out in an application for permission to make a fresh application might not tell the whole, or indeed a true, story; the situation ‘on the ground’ might not be as the applicant asserted. Before a judge opened the gateway to fresh litigation – in circumstances when a court had earlier taken the exceptional course of imposing a restriction on further applications – an opportunity should be given to the respondent to fill any factual gaps, or correct any factual errors (deliberate or unwitting), and to respond on the merits. Further, as contemplated in Re N (section 91(14) Order) [1996] 1 FLR 356, there might be no ‘genuine need to invoke the court’s assistance in the problem that had arisen’. It might be that the issue – when analysed with the benefit of both parties’ contributions – did not warrant the expense and time of court intervention, thereby saving the parties’ and the court’s limited resources. Finally, only by offering the respondent an opportunity to be heard would the judge be fulfilling the obligation under the ‘overriding objective’ under the FPR 2010 to deal with case ‘justly’ and ‘fairly’: there would be few, if any, situations in which the respondent was not likely to be materially affected by the grant of the application to re-open the litigation; and justice and fairness required that the respondent be given the chance to inform and influence the decision whether further litigation should be instigated (see [39]–[41], below).
(3) Even if not, strictly speaking, procedurally irregular (in the sense that the rules did not prevent the judge from considering the application on a ‘without notice’ basis), on the facts of this case, it had been wrong not to give the mother the opportunity to respond to the application. Given the long and ‘toxic’ history of these proceedings, very considerable caution should have been exercised before re-igniting the litigation. It had been highly predictable that the launch of further substantive proceedings would stir up very considerable ill-feelings between these parties. The judge had considered these issues very recently, making a substantive (albeit very limited) order for indirect contact between the father and the children, which had not yet been put into effect. The father had not provided evidence of any input by a medical/therapeutic or childcare professional; having given weight to the lack of such evidence in December 2017, the judge had appeared to attach little, if any, weight to this point in granting permission this time, retreating from his previous position. The Cafcass report had suggested that little had changed and the elder child’s expressed view to the Cafcass officer was not supportive of a re-introduction of contact. The court had been on notice of the mother’s concerns about the likely impact on her of the legal costs that would be incurred in the event that litigation was re-instituted. The launch of further proceedings would inevitably have an impact on the private and public purse; the mother’s solicitor had made a fair point in correspondence that the court would need to be very clear about allowing further litigation given that ‘escalating costs’ had already arisen. Under the FPR 2010, the judge had been obliged to have regard to ‘saving expense’. A subsidiary but not unimportant point was that the mother had, because of the court’s error, had notice of the father’s application to apply for a CA 1989 order and had therefore not benefited from the application being dealt with on a ‘without notice’ basis, but had nonetheless been unable to participate in the hearing and had been powerless to try to influence its outcome (see [38], [42], [43], below).
(4) The judge’s rationale for granting the application had been wrong. He appeared to have reached his decision on pure welfare grounds, whereas s 1(1) CA 1989 did not apply to this...
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