Re T (A Child) (Suspension of contact) (Section 91(14) CA 1989)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tomlinson |
| Judgment Date | 14 July 2015 |
| Neutral Citation | [2015] EWCA Civ 719 |
| Docket Number | Case No: B4/2014/2671 & B4/2014/2553 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 July 2015 |
[2015] EWCA Civ 719
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL FAMILY COURT
Her Honour Judge Hughes QC
FD12P00358
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Tomlinson
Lady Justice Gloster
and
Mr Justice Cobb
Case No: B4/2014/2671 & B4/2014/2553
The First Appellant (Father) in person
The Second Appellants (Paternal Grandparents) in person
The 1 st Respondent (Mother) in person
Mr. Michael Liebrecht (instructed by CB4law) for the 2 nd Respondent (Child, by her Guardian)
Hearing dates: 25 June 2015
This is the judgment of the Court, prepared by Mr Justice Cobb.
Introduction
E was born in December 2009 and is therefore now 5 1/2 years old. She is the only child of the First Appellant ("the father") and First Respondent ("the mother"). E lives with her mother; she has not had any contact with her father for nearly two years, and had only very limited contact with him in the year before that. She has not seen the Second Appellants ("the paternal grandparents") since December 2013. E has been the subject of family law litigation for virtually all of her life, and, since May 2011 has been a party to these proceedings, represented by her Children's Guardian appointed by Cafcass.
The father and paternal grandparents separately seek permission to appeal against orders made by HHJ Hughes QC of 3 July 2014, by which (on the mother's application) all contact between the father and E was suspended indefinitely, and an order was made under section 91(14) of the Children Act 1989 (' CA 1989') prohibiting the father from making an application for contact or any section 8 CA 1989 order in respect of E, without the leave of the court, until December 2019 (i.e. when E is 10). These orders were made in the absence of the father.
It is regrettable that the application for permission to appeal has taken nearly one year to be listed for hearing though we are satisfied, on enquiry, that this has been unavoidable for entirely legitimate administrative reasons. This is, it is to be noted, the fourth occasion in which the issues arising from the separation of these parties has proceeded to the Court of Appeal, the second to a full Court.
The four key issues, which we have distilled from the written Grounds of Appeal (the father's Notice contains 19 separate grounds), Skeleton Arguments and submissions before us, are these:
i) Did judicially-assisted conciliation between the parties in respect of child arrangements for E (specifically E's living arrangements and contact) at a hearing on 13 May 2014, disqualify the Judge from conducting a subsequent contested hearing on 3 July 2014?
ii) Did the Judge err in making substantive orders on 3 July 2014 (including a section 91(14) order restricting any application under section 8 CA 1989):
a) In the absence of the father?
b) On the basis of factual findings made without forensic testing of the documentary material, of some of which the father had no knowledge?
And/or
c) Having indicated to the parties that she would not conduct any hearing in relation to residence issues?
iii) In ordering the indefinite suspension of contact, did the Judge pay proper regard to section 1(1) CA 1989 and the statutory list of welfare factors ( section 1(3) ibid.), and to the Article 8 rights of the father and the child, all of which were engaged in such a decision?
iv) Was the order under section 91( 14) CA 1989 appropriate in principle, and/or proportionate?
At the conclusion of the appeal hearing on 25 June we informed the parties that we would grant permission to the father to appeal, and we allowed his appeal; we remitted the matter to a Judge of the Family Division for rehearing. At the hearing before us the paternal grandparents acknowledged that they were not directly affected by the order under challenge, and in light of our determination of the father's application and appeal they chose not to pursue their application; we therefore made no order upon it. Plainly the grandparents' position in E's life can be considered as part of any further review by the Court.
Background
E's parents are highly educated, intelligent, professional people. They met at university and married in 2000; they separated in 2010. Professional concerns about the parents' mental ill-health and domestic abuse around the time of E's birth prompted safeguarding intervention from the relevant social services. In March 2010, proceedings under Part IV CA 1989 were instituted in respect of E, and for a short period, she was the subject of an interim care order, albeit placed at home. Those public law proceedings were withdrawn in July 2010, after a period of stability in which – for a number of months – the mother and E lived with the paternal grandparents.
In December 2010, almost immediately after the parental separation, the father issued an application for residence and contact, the first of a number of court applications made by both parties under the CA 1989, and the Family Law Act 1996. We consider it unnecessary, for the purposes of this judgment, to rehearse in detail the extensive litigation chronology. The multiple court hearings, and judgments and orders which have flowed from them, reflect an extraordinarily high degree of conflict in the parental separation. By the time the proceedings were listed before HHJ Hayward Smith QC on 12 December 2011, he expressed a concern that the case was "in danger of spiralling out of control", a fear which has in our view regrettably all too obviously come to pass. Not only have the parents been in relentless conflict with each other, but the father has also raised repeated and serious allegations of professional misconduct against E's court-appointed Guardian, against counsel instructed in the case at various times, and against some of the judges. Family related litigation was at one time unacceptably being conducted simultaneously in three family court centres in different parts of the country, and even when co-ordinated in one location, there has been a regrettable lack of judicial continuity (even though it had been explicitly acknowledged by many of the judges involved to have been "essential" to maintain firm and consistent management of the case).
In our own review of the background history we recognised that there was a risk, by which in our view this experienced Judge allowed herself to be distracted, that the truly dreadful chronology of litigation, and the behaviours of the adults towards each other and the professionals, would divert attention from, and ultimately eclipse, the essential issue, namely E's relationship with both her parents.
In May 2011, the Court made a defined order for regular fortnightly contact between E and her father on the basis that it was to take place at the home of a maternal aunt; the father enjoyed contact in accordance with this order and after two months it was relaxed to permit for staying contact at a location of the father's choosing, provided that at some point in the weekend a member of the paternal family was present. Later in the same year, the paternal grandparents whose contact with E by then had become problematic, applied for and were granted permission to make an application for contact. In December 2011, at a directions hearing to which we have already made reference (see [8] above), HHJ Hayward Smith QC granted a final residence order in favour of the mother and a further contact order to the father largely in line with the existing order; HHJ Hayward-Smith gave specific leave to the father to apply for additional contact conditional upon him obtaining and filing a report from an identified psychologist upon his mental functioning and health. The father sought permission to appeal these orders to this court (see [12] below).
On the second of the contact visits which followed the December 2011 Order, there was an altercation between the parents at the hand-over of E; each parent made an allegation of assault against the other. A judicial finding of joint culpability was ultimately made, albeit with the mother bearing the larger share of responsibility. Contact ceased and the father issued an application for enforcement; contact resumed for a short time, but reduced to visiting contact in a contact centre.
In refusing the father's application for permission to appeal the order of HHJ Hayward-Smith in February 2012, Thorpe LJ bemoaned that the case had "rushed off the rails" and had collapsed "into acrimony and violence", while nonetheless concluding "unhesitatingly" that HHJ Hayward-Smith had not erred in making the orders described above.
Multiple further court hearings in 2012 and 2013 focused on the ongoing difficulties arising from the father's contact with E. The residence order made by HHJ Hayward Smith QC was challenged both formally and informally by the father, though his challenges were rejected and dismissed by the courts. In April 2012, the father made a complaint to social services about the mother's care of E which provoked an investigation under section 47 CA 1989; no action was taken on the complaint. The style of these challenges was described as "hectoring and argumentative", the father portrayed as "bullying and aggressive if he does not get his own way", leaving the mother ostensibly vulnerable and undermined, or as HHJ Compston (who succeeded HHJ Hayward Smith QC in managing the case) observed "utterly and completely miserable by this case … overwhelmed by difficulties … a sad, bruised figure". HHJ Compston was caused further to...
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