S v S

JurisdictionEngland & Wales
Judgment Date2006
Date2006
CourtCourt of Appeal (Civil Division)

Family proceedings – Residence order – Order restricting applications without leave of court – Whether conditions might be attached to order – Whether judge entitled to extend duration of order – Children Act 1989, s 91(14).

In private law proceedings between the father and the mother under Pt II of the Children Act 1989, the judge made an order granting the father permission to withdraw his application for a residence order in respect of the two children, then aged nine and six. He also made an order, on the mother’s application, under s 91(14) of the Act in the following terms: ‘The father (Mr S) shall not make any further applications to the court regarding the residence of the children or his contact with the children without leave of the court until the children have reached 16 years of age. Such application will require a psychological or psychiatric report indicating that the author has had sight of the guardian’s report dated 17 September 2004 and the report of Dr C dated 1 August 2004 and that the father has engaged in treatment. The application to be heard by Judge Mitchell if practicable.’ The father applied for permission to appeal against the s 91(14) order. His application was granted (see [2006] 3 FCR 50). At the permission hearing, the court had accepted the submission of the advocate to the court that the court did not have jurisdiction to attach conditions to a s 91(14) order, but had been unable to deal with the substantive appeal as the permission application had been listed without notice either to the mother or to the children’s guardian. On the hearing of the substantive appeal, the father also submitted, inter alia, that the judge had not been entitled to extend the duration of the order until each child attained the age of 16.

Held – In the instant case, the judge had erred in imposing conditions on any further application by the father. To do so was impermissible. However, it had been open to him to impose an order designed to last until each child was 16. In effect, the judge was saying that the welfare of the children required an order which enabled them to live out the remainder of their respective minorities without being the subject of further applications to the court, unless the father first satisfied a judge that he had an arguable case with some prospect of success in relation to any application that he wished to make. There was sufficient in the material before the judge to entitle him to take that view. Where the judge had, of course, gone wrong was in imposing conditions upon any further application by the father. Furthermore, by imposing the condition he was, in effect, making findings of fact in relation to matters over which he had heard no evidence. If the judge had made a non-binding indication, that

would have been legitimate. Accordingly, the appeal would be allowed only to the limited extent of deleting the conditions attached to the order. Furthermore, the reference in the judge’s order to the application for permission to make a further application being heard by Judge Mitchell would be deleted. In its place there would be a direction that any application by the father to apply for contact with the children should be made to and considered by one of the Family Division liaison judges for the South Eastern Circuit and, if not determined by that judge, then it should be determined by a High Court judge of the Family Division to be allocated by the liaison judge in consultation with the President of the Family Division.

Cases referred to in judgments

C (children: contact), Re[2002] EWCA Civ 292, [2002] 3 FCR 183, [2002] 1 FLR 1136.

M (minors) (contact: evidence), Re[1998] 2 FCR 538, [1998] 1 FLR 721, CA.

P (a child) (residence order: childs welfare), Re[1999] 2 FCR 289, [1999] 3 All ER 734, [2000] Fam 15, [1999] 3 WLR 1164, [1999] 2 FLR 573, CA.

S (children) (restriction on applications), Re; Re E (a child) (restriction on applications) [2006] EWCA Civ 1190, [2006] 3 FCR 50.

Taylor v Lawrence[2002] EWCA Civ 90, [2002] 2 All ER 353, [2003] QB 528, [2002] 3 WLR 640.

Appeal

The appellant, Mr S, appealed against an order made under s 91(14) of the Children Act 1989 made by Judge Mitchell on 27 September 2004 in private law proceedings under Pt II of the Act between the appellant and his former wife relating to their two children, J and E. The facts are set out in the judgment of Wall LJ.

The father appeared in person.

The mother did not appear and was not represented.

WALL LJ.

[1] The appellant, Mr S, appeals against an order made under s 91(14) of the Children Act 1989 (henceforth respectively a ‘s 91(14) order’ and ‘the Act’) made by Judge Mitchell on 27 September 2004 in private law proceedings under Pt II of the Act between the appellant and his former wife relating to their two children, J (a boy) now aged 11 and E (a girl) now rising eight. At the time of the hearing before the judge, the children were respectively nine and six.

[2] The circumstances in which the appeal reaches this court are unusual, and are set out in [42] to [49] of a reserved judgment of this court, comprising Thorpe LJ and myself, handed down on 18 August 2006. The judgment deals with two appeals, and bears the neutral citation number [2006] EWCA Civ 1190. It has recently been reported as Re S (children) (restriction on applications); Re E (a child) (restriction on applications) [2006] EWCA Civ 1190, [2006] 3 FCR 50. I will henceforth refer to it as Re S, Re E. The two

appeals were listed together, since both dealt with unusual s 91(14) orders. An advocate to the court, Mr Paul Hepher, had been appointed to address the issues of law arising in the two appeals, and his general submissions are summarised in the judgment at [50] to [62] ([2006] 3 FCR 50 at [62]–[66]).

[3] Paragraph 1 of Judge Mitchell’s order gave Mr S permission to withdraw his application for residence of the children. The s 91(14) order followed as para 2. It is particularly unusual. It reads as follows:

‘The father (Mr S) shall not make any further applications to the court regarding the residence of the children or his contact with the children without leave of the court until the children have reached 16 years of age. Such application will require a psychological or psychiatric report indicating that the author has had sight of the guardian’s report dated 17 September 2004 and the report of Dr C dated 1 August 2004 and that the father has engaged in treatment. The application to be heard by Judge Mitchell if practicable.’

[4] Paragraph 3 of the judge’s order gave Mr S permission to disclose the two reports referred to in para 2 of the order ‘to his general practitioner and to any treating psychiatrist or psychologist’. The balance of the order, which is not directly material for the purposes of this appeal, gave the mother’s husband permission to apply with her for a joint residence order, which the judge then made in para 5. Paragraph 6 forbad direct contact between Mr S and the children, but permitted indirect contact in the form of letters and cards from Mr S which were to be passed on to the children by their mother if they were ‘appropriately expressed’. The judge also discharged an earlier prohibited steps order made by Judge Poulton on 5 October 2001, which prevented the children’s mother from making any decision about their schooling without Mr S’s consent.

[5] As is recounted in the judgment of this court in Re S, Re E, Mr S sought permission to appeal against Judge Mitchell’s order. His application was refused both by the judge and, following an oral hearing, by Black J on 19 July 2005. Her judgment has been transcribed, and is in our papers. Mr S then made a Taylor v Lawrence[2002] EWCA Civ 90, [2002] 2 All ER 353, [2003] QB 528 application, which was referred to me on paper on 23 February 2006. I expressed concern about both the duration of, and the conditions attached to, the s 91(14) order, and invited submissions from Mr S on these two points. As the case raised issues of importance relating to s 91(14) orders generally, and as Mr S was in person, I invited CAFCASS Legal to appoint an advocate to the court to address issues of law arising from the s 91(14) order made in his case. As I have already stated, arrangements were made for Mr S’s application for permission to appeal to be listed together with the case of Re E, which raised a different point in relation to s 91(14) orders.

[6] The submission made by the advocate to the court in Re S, Re E was that the court did not have jurisdiction to attach conditions to a s 91(14) order: see [2006] 3 FCR 50 at [66]–[67], paras [63] to [65]. This court accepted that

submission in paras [73] to [77] of its judgment: see [2006] 3 FCR 50 at [69]–[70]. However, as the matter was only at that stage listed as a permission application without notice either to the children’s mother or to their guardian in the proceedings, the relief which this court could grant was limited to that of permission to appeal. In para [96] of its judgment, the court stated:

‘We are in no doubt that we should give Mr S permission to appeal against the s 91(14) order made in his case. We do not propose to limit the ambit of the appeal to the question of the conditions attached to it. We think Mr S should be entitled to argue, if he wishes, that an indefinite order under s 91(14) (or, indeed any order under s 91(14)) should not have been made. Whilst his prospects of success in relation to the latter argument may be doubtful, we do not think it appropriate for the argument to be limited to the narrow, conditions point.’

[7] When we heard the appeal on 30 October 2006, the only appearance was by Mr S, who was in person. He told us that he had notified both the children’s mother and their guardian that the appeal was being heard, but that neither had responded. Furthermore, the documentation available to us was limited...

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