S-B (Children), Re [2015] EWCA Civ 705

Case No B4/2014/3942[2015] EWCA Civ 705
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Preston Combined Court Centre
His Honour Judge Lancaster
PR12P00883
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/07/2015
Before
LORD JUSTICE ETHERTON(Chancellor of the High Court)LADY JUSTICE MACURLADY JUSTICE KING
Between
Re S-B (children)AppellantRe S-B (children)
Nicholas Williamson (instructed by Woodcocks Haworth & Nuttall Solicitors) for Appellant for The Respondents were not represented and did not appearHearing Hearing date: Wednesday 8th July 2015
Judgment
[1]This is an appeal by RS (the mother), against a child arrangements order made by His Honour Judge Lancaster at the Family Court sitting at Preston on the 17 October 2014. The order made was in relation to R and M, the children of the marriage between the mother and HS, the father: R (born 12 June 2000), is now 15 and M, (born 3 August 2013), is rising 12.[2]By his order, the judge dismissed the mother’s applications for a prohibited steps order and for an order under the Family Law Act by which she sought orders which would require the children’s passports to be held by the court and for the father to be prohibited from removing the children from the jurisdiction. The mother does not challenge those orders. In addition the judge made the following two orders:
“(3) There be an order under s91(14) Children Act, prohibiting the mother from making any further applications without the permission of the court until 3 August 2018. (4) The father is to make the children available to receive indirect contact from their mother on a fortnightly basis facilitated by Parklands High School, as is the current arrangement.”
[3]It is against these orders that the mother now appeals permission having been given by Pitchford LJ.

Background

[4]The parents are from Tunisia, where they married in August 1999. Until 2006 by which time both children had been born, the mother continued to live in Tunisia whilst the father who is a UK citizen was based in the UK returning to Tunisia to visit the family several times each year. The mother and children joined the father in England in 2006. The mother and father separated in 2008 and were subsequently divorced. The father has remarried.[5]The children lived with the mother until May 2012. On the 13 May 2012, the boys went to a local police station alone complaining that their mother had mistreated them. The children have, since that time, lived with their father and have refused to see their mother.[6]That brief history does not adequately reflect the turmoil and instability in the lives of these boys. In 2008 and 2009 there were contact, residence and specific issues applications. In 2010 there was a further specific issue application and in 2012 again residence, contact and prohibited steps applications.[7]On the 27 August 2013, Recorder Bedford (as he then was), ordered that the children were to live with their father who was to provide indirect contact to the children from their mother as facilitated by a CAFCASS officer. The court at the same time made a family assistance order until the 27 August 2014.[8]The way the family assistance order has worked is that the school has facilitated indirect contact overseen by CAFCASS. Throughout the period of the family assistance order, the children’s feelings and general wellbeing was monitored by CAFCASS by way of regular meetings and ongoing liaison with the school and with the parents. It is to the great credit of the school that they have been willing in the interests of these two boys to play such an active role in contact in circumstances in which, it is clear, have been difficult and often extremely difficult, and has at times necessitated them dealing with confrontational behaviour on the part of the mother.[9]The court had the benefit of a number of CAFCASS reports, one of which sets out in considerable detail all the contacts between the mother and the children in school, between the making of the family assistance order in August 2013, and going through to the 16 April 2014. The chronology discloses numerous problems suggestive of inappropriate behaviour on the part of the mother and distress on the part of the children.[10]On the 28 July 2014, the children were joined as parties to the proceedings. The chronology raised sufficient concerns in relation to the mother’s handling of contact and the increasing distress of the boys manifesting itself in difficult behaviour and angry outbursts, that when the matter came on for a case management hearing before His Honour Judge Rawkins in Preston on 1 September 2014, he identified issues which went beyond the written application, namely the:
“identification of a regime of contact to promote a secure relationship with the children’s mother, and whether, having identified the appropriate contact regime, this can be implemented and whether an order should be made preventing further applications as appropriate. ”
[11]The judge had therefore set out in layman’s language, (both parties now being litigants in person), that consideration would be given as to whether an order should be made pursuant to the Children Act 1989 s91(14) limiting the mother’s ability to make future applications without the leave of the court.[12]When the matter came on before the judge he had the benefit of an updated report filed by Julie Mooney, the children’s guardian, dated the 8 October 2014. Miss Mooney had the opportunity of seeing all the parties and meeting not only with the children but with each of the parents. It is undoubtedly the case that the mother had, and has, no confidence in Miss Mooney and continues to be unable to accept that the boys have been unequivocal to her in saying that do not wish to have direct contact with their mother and will only accept indirect contact by letter, providing that the content of the letters are appropriate and, further that the boys are very clear that they are “desperate” for the court proceedings to finish.[13]Miss Mooney concluded that:
“R and M’s childhood has been blighted by parental discord, whilst this is unlikely to change, the court can improve the children’s circumstances by finalising the court proceedings and taking steps to prevent further applications.”
She went on:
“Continued exposure to the court process will only add to their frustration and have a negative effect on their wellbeing. The boys want and are entitled to a normal life without the intervention of professionals which includes being able to go on a foreign holiday.”
[14]Miss Mooney was of the view that the current indirect contact arrangements are the best that can be achieved in the circumstances, “keeping the door open and affording R and M the opportunity to develop a relationship with the mother on their terms”. Miss Mooney concluded that the arrangements for indirect contact through school should continue and that the court should make an order pursuant to s91(14) for 4 years until M is 16 years of age.[15]The judge having heard evidence made the orders against which the mother now appeals. A helpful skeleton argument was submitted by Miss Kilvington by Direct Access in support of the mother’s application and the court has today had the benefit of Mr Williamson attending to represent the mother at very short notice. The court is grateful to Mr Williamson who overnight prepared and then presented the case on behalf of the mother with moderation and economy, highlighting those points which could properly be made in support of the appeal, whilst ensuring that the court was aware of the very deep distress caused to the mother as a consequence of not being able to see her children.

Contact

[16]Mr Williamson’s submissions in relation to contact highlighted that it must always be in children’s interest to rebuild their relationship with their mother and that the children must inevitably be harmed by the absence of such a relationship. Mr Williamson, whilst accepting that no application had been made by the mother, (perhaps understandably as she was a litigant in person), consideration should have been given to a referral to a psychologist to consider the source of particularly M’s emotional difficulties, which difficulties the mother fears arise as a consequence of the children having moved to live with their father. The mother does not accept that the views expressed by the children are their own and such a referral she suggests could further explore whether they have, contrary to the views of the CAFCASS officer and the judge, been the result of their father’s adverse influence.[17]The judge explored the possible reasons for the children’s reluctance to see their mother. He concluded, as was almost inevitable from the evidence before him, that neither of the children currently wish any direct contact with their mother and will only accept indirect contact. The judge gave weight to their views, particularly given the ages of the children. The judge regarded it as “extremely sad that the position that they are now in, in relation to their mother exists” and unhesitatingly concluded that indirect contact was in the best interest of the boys.[18]In my judgment, on the evidence it cannot be shown that the judge was wrong in reaching such a conclusion and accordingly, I would dismiss the appeal against the making of the indirect contact order.

S91(14) Children Act 1989

[19]s91(14) provides as follows: (14) On disposing of any application for an order under this Act, the court may “whether it makes any other order in response to the application” order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without the leave of the court. Mr Williamson referred the court to the well known case of Re P (section 91(14) – guidelines)(residence and religious heritage) [1999] 2 FLR 573 the guideline case in relation to the making of such orders. Mr Williamson rightly accepted that in suitable circumstances a court may impose the leave restriction in cases where the welfare of the child requires it even though there is no past history of making unreasonable applications (Re P para 24 guideline 6). Mr Williamson rightly further considered that the indirect contact regime was well established but sought to rely on the fact that before the order can be made absent repeated allegations, there must be a serious risk that without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain (guideline 7).[20]In my judgment, the evidence pointed overwhelmingly to the strain the boys were under and of their anger and frustration at the continuing litigation. The children have not only been the subject of unremitting litigation since 2008, but have been subject to the additional scrutiny that comes with a family assistance order for 12 months. Instead of the family assistance order marking a transition to life without the intervention of third parties and the court, there has continued to be litigation.

The judge said that:

“On the particular facts on this case and regard to the length of the litigation and the strong views expressed by the boys I feel that their welfare requires it and I should make the order.”
In my judgment this is one of those cases, notwithstanding that such orders should be made with considerable circumspection, that the welfare of the boys undoubtedly demanded that not only litigation should come to an end, but that they should be reassured that it can not be reactivated without the permission of the court.[21]That leaves therefore consideration of Mr Williamson’s submission in relation to the duration of the order and the wording of the order prohibiting as it does the mother from “making any further applications” without the permission of the court.[22]Mr Williamson submits that 4 years is too long and that the judge erroneously referred to the fact that 4 years would take M through to 16 years. The judge in fact made an error in relation to M’s date of birth and he is in fact 11 not 12 as recorded in the judge’s judgment. The judge heard and saw the parties give evidence and was able to make his own assessment as to the appropriate length of time necessary in order to give the boys the security and stability they need following 7 years of virtually constant litigation. In my judgment it cannot be said that the judge was wrong in determining that the right period was 4 years.[23]In relation to the issue of the breadth of the order Mr Williamson emphasises that the section refers to the prohibition being in respect of “an application for an order under this Act of any specified kind”. Mr Williamson submits that the order should have specified which specific types of application were covered by the order, relying in making his submission on the observation of Butler Sloss LJ (as she then was) in Re P at 593f that:
“An absolute prohibition on making any application to the court would not in my view be an order under s91(14) which presupposes and (ex parte) application to the court. An order imposing an absolute prohibition would have to made under the inherent jurisdiction of the court, see Re R (residence: contact: restricting applications) [1998] 1 FLR 749 per Wilson J at 760.”
[24]Mr Williamson had not had time, for understandable reasons, to turn up Wilson J (as he then was) observations referred to by Butler Sloss LJ, the relevant passage says that:
“…it is to be noted that the order was not that there should be no such application within 3 years without leave of the court. It was, so far as I can perceive, and Mr Arnott has felt constraint to agree, an absolute bar on any proceedings being taken for 3 years. As such, it was a particularly controversial order. Indeed I consider that the order could not have been made under s91(14) which envisages that an application for leave to apply may be made at any stage. Thus it is that, in my judgment, Re T is to be regarded as an example of an order made in the High Court in the exercise of that court’s inherent jurisdiction and indeed on exceedingly unusual facts.”
[25]It seems therefore that the reference to “absolute prohibition” by Butler Sloss LJ refers not to the nature of the proposed applications but a prohibition which does not provide, as is required under s91(14), for permission to be sought at any time during the term of the order to issue an application under the Children Act 1989. It follows therefore that as s91(14) specifically refers to applications under the “the Act”, there can be no misunderstanding as to it’s meaning.[26]Mr Williamson submits however that the order as drafted is in any event too broad in its terms and should be limited, if made at all, to applications in relation to questions as to where the children will live and the amount of time the children will spend with their mother by way of either indirect or direct contact. Setting out in the body of the order such a limitation as a “specified kind” of application in respect of which no application can be made without permission not only, says Mr Williamson, gives clarity to the order but also allows the party so prohibited to make any other appropriate applications under the Act without the fetter of having to seek permission prior to issue.[27]For the reasons given by Mr Williamson, it would be undoubtedly be good practice to set out with precision those applications under the Children Act which it is intended should be covered by a s91(14) prohibition and careful consideration should always be given to the wording of an order made under s91(14) CA 1989. The reality is however that in those cases where the court has felt compelled to make this exceptional and draconian order, the likelihood is that, (as here), the children need protection from any form of application made under the Act; any one of which will, once again, put them at the centre of a dispute between their warring parents. The present case is a case in point, the applications have related not only to where the children will live and what form contact should take, but even to the mother seeking to prevent the children from having holidays abroad, (notwithstanding that by virtue of the Children Act 1989 s13(2), the father by being the person with whom the children live is entitled without permission from the absent parent to remove the children from the jurisdiction for a period of up to 1 month a year).[28]It may be that a counsel of perfection would have led to the wording of the order saying something to the effect that “no application under any provision of the Children Act 1989 may be made in respect of either child…..” rather than the simple reference to “any further applications”. However in my judgment, on the facts of the case, the judge was right in concluding that these two children need the protection of the permission filter in relation to any applications which the mother may consider making under any provision under the Children Act 1989 for a substantial period of time.[29]I would accordingly dismiss the appeal against the making of the s91(14) order.[30]I agree.[31]I also agree.