E v M [2015] EWCA Civ 1313

07 JAN 2016
Case No: B4/2015/1721
Neutral Citation Number: [2015] EWCA Civ 1313


IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT SWINDON

RE E (A CHILD)
Ms Recorder Clayton SN13P00200

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 18/12/2015


Before:

LORD JUSTICE LAWS
LORD JUSTICE SIMON
and
MS JUSTICE RUSSELL

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Between:

E
Appellant

and

M
1st Respondent

and

Y (A Child by her guardian)
2nd Respondent

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Ms Finola Moore (instructed by Direct Access) for the Appellant
Ms Ariel Ricci (instructed by Direct Access) for the 1st Respondent 
Ms Corinne Iten (instructed by Reeds Solicitors) for the 2nd Respondent (Child)

Hearing date: 26th November 2015

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Judgment 

Ms Justice Russell DBE:

Introduction


[1]  This application for permission to appeal is brought by the Appellant (E) in respect of a decision of Ms Recorder Clayton, and the child arrangement orders pursuant to s 8 (as amended) of the Children Act (CA) 1989 that she made after a trial which took place over 16th, 17th, 18th and 20th February 2015 when sitting at the Family Court at Swindon. The subject of the proceedings between E and the 1st Respondent (M) is the 2nd respondent child (Y) a girl, born on the 15th July 2006, now 9 years and 4 months old. The difficulties over the time that Y was to spend with her father (E) began in 2010 not long after the parents separated.

[2]  These were protracted private law proceedings, E first made an application to the court for a shared residence order in 2012. There have been two contested hearings regarding s 8 orders: the first was before District Judge Ball in October 2012. The district judge gave a judgment, and the orders he made included a shared residence order. In fact Y lived with her mother for most of the time during the school terms and for half of the school holidays. The case returned to court for numerous short hearings before a second contested hearing before Ms Recorder Clayton in February 2015. It is not clear just how many times the case has been before the court. E now seeks permission to appeal, out of time, against the child arrangement orders made by the recorder dated 20th February 2015.

[3]  The orders made on 20th February 2015 were that Y was to live with her mother (M) and only have indirect contact with her father in the in the form of a monthly letter and a card, and a present at her birthday and at Christmas. The order specified that Y would not spend time with her father or have telephone contact with him. The recorder made a prohibited steps order (PSO) pursuant to s 8(1) CA 1989 that E was not to attend Y’s school without the specific prior authority of the school, and an order pursuant to s 91(14) CA that E was prohibited from making any further application for a Child Arrangements Order or other section 8 order without first obtaining the leave of the court for a period of three years from the date of the order.

[4]  This judgment sets out the background to the case and considers the judgment of Ms Recorder Clayton below. In short it is my view that the Appellant has not demonstrated that the decision of the recorder, which was properly based on the evidence before her, was wrong and that the child arrangements orders she made were inconsistent with either with the findings she made or the welfare of the child, her paramount consideration. In respect of the s 91 (14), alone, it is clear that the Appellant did not have sufficient notice of the application that was made and the manner in which it was made did not comply with case law or proper procedure.

Background

[5]  In considering E’s application it has been necessary to consider the history and background facts of this case and to rehearse the evidence which was before the recorder in some detail because E made substantial reference to both aspects in the documents he filed in support of his appeal.

[6]  Y is the only child of E and M who were not married and lived together for a period of years between 1999 and 2009 when their relationship came to an end. M is from Northern Ireland and E was born in Iraq. They met in North Wales and have moved within the UK, first to Lancaster, then to Northern Ireland and to Exeter, in 2005, where Y was born in 2006. The parties separated in May 2009 and it would seem that they managed the care of Y jointly, but not without difficulty as by 2010 Y showed reluctance to go to stay with her father. The situation deteriorated when Y started school in 2011 which coincided with M embarking on a new relationship with her current partner. As is all too common this new relationship created additional tension between the parents. Y has lived with M and her partner and his children (when they spend time with him) since late 2011 and spent weekends and part of the school holidays with E.

[7]  E first issued proceedings in Exeter County Court in January 2012. In January 2012 M had consulted a child psychologist because of Y’s behaviour and distress around contact. There was a period when mediation took place but the difficulties continued. During early 2012 Y stopped seeing E for a time as she was again struggling to cope with the handovers. Contact was recommenced at a contact centre. In the summer of 2012 the court ordered a s 7 (CA) report to be prepared by Cafcass. Overnight contact had only just begun again when the contested hearing before District Judge Ball took place in October 2012. The orders made by the district judge on 19th October 2012 formed the basis of the subsequent period of child arrangements for Y up until the second contested hearing before Ms Recorder Clayton.

[8]  From the transcript of District Judge Ball’s judgement it is clear that the court was aware and accepted that Y was struggling over handovers at contact and made reference to the views of the Cafcass Family Court Reporter (FCR) that E was somewhat controlling and had difficulty in responding to concerns raised by workers at the contact centre and school staff. Y’s behaviour during contact had raised concern; she wet the bed, she cried and showed signs of anger and distress. E had accepted that he phoned the child at night frequently and had phoned and Skyped when she was on holiday with her mother. He accepted he went to her school frequently but did not accept that anything in his behaviour had caused Y’s difficulties.

[9]  The FCR told the court that it was her understanding that E phoned Y every night which the FCR considered to be both unusual and intrusive. In concluding her evidence she said that she had serious concerns that a shared residence order would “put [Y] back in the firing line.” E’s evidence that his frequent attendance at Y’s school did not cause her any difficulty was not accepted by the court, and the fact that the school itself had expressed concerns led the district judge to say in his judgment at paragraph 37, “I can see no good reason why [E] should go to [Y’s] school to the extent the school have expressed concern. I can see no good reason why he should seek to telephone [Y] almost nightly to read her a bedtime story.”

[10]  The district judge went on to say that while E “does have an understanding of [Y’s] needs…he puts his own needs first. Further E gives the impression of being reasonable and flexible over contact but I find that he is anything but reasonable and flexible. He is, I find, only reasonable if he gets his own way.” Despite this finding and the concerns expressed by the FCR the district judge made a shared residence order. The judge noted at paragraph 44 that M “does plan to move to Swindon” and that shared residence order was not a bar to relocation to Swindon or anywhere else.

[11]  The district judge had considered the welfare “checklist” in section 1(3) of the CA and questioned E’s ability to prioritise Y’s need before his own. In respect of s 1 (3) (f) (the capability of the parents to meet the child’s needs) the district judge said, “whether [E] is willing to put [Y] first only time will tell.” The order set out the time Y was to spend with E which was alternate weekends, after school on each Wednesday and she was to spend half of each school holiday with E. E was not to go to Y’s school except at the invitation of M or the school.

[12]  Regardless of the court’s recent decision, on the 30th November 2012 E applied for a Prohibited Steps Order (PSO) within six weeks, in an attempt to stop M moving to Swindon. Unsurprisingly that application, heard on 8th January 2013, was refused by the district judge and E was not granted permission to appeal against that decision. Y moved to Swindon with her mother in February 2013 and started school there.

[13]  Y’s distress over her contact with E continued; it affected her behaviour at home and at school and led to incidents of Y self-harming between October and December 2013. As a result of what Y told M about E’s behaviour towards her when she had contact, including that he had hit her, she was taken to see her GP by her mother. The GP contacted social services; and in a letter dated the 8th October 2013 he alerted them to his concerns regarding the effects on Y of contact and what she had said about E’s behaviour towards her during contact. On 11th October 2013 M applied to vary the shared residence order. There followed further applications and cross-applications by both E and M. On the 22nd October 2013 there was an order of the court directing social services to file a letter setting out the result of their risk assessment of the child. An initial Child Protection Conference was convened by social services on 23rd December 2013 when Y was made the subject of a child protection plan by the local authority under the categories of emotional Abuse and Physical Harm.

[14]  M contacted children’s services on 15th January 2014 because of Y’s emotional distress and again on 29th January 2014 when she told the social worker that she was concerned that Y’s progress in school was being detrimentally affected. On the 3rd February M told the social worker that Y had complained of sexually inappropriate behaviour by E. As a result of this a strategy discussion took place with Wiltshire Police and a joint investigation was initiated. Y was interviewed by the police two days later, on the 5th February 2014, when she complained of being physically chastised by E and said that her father had smacked her on the legs, got cross with her and that it had happened when she was five or six (she was seven at the time of the interview). Y had said she would like to see E but only for a few hours and then come back to her mother, she did not want to stay overnight. Y did not make any complaints about sexual abuse.

[15]  Emma Hunt (the allocated social worker) prepared two reports for the court dated 6th February 2014 and 7th March 2014 which later formed part of the evidence before Ms Recorder Clayton. Ms Hunt said she had found the child to be open and honest: Y told Ms Hunt that she did not like her father and that he scared her. Y said she was scared of him because he shouts at her. Ms Hunt was “of the professional view that [Y’s] wishes and feeling have been consistent throughout Children’s Services involvement, in that she has a clear level of anxiety around contact with her father. [Y] has been consistent in frequently expressing she does not want to see her Father, something in my professional opinion is not influenced by her Mother or her Mother’s partner.” In her conclusions in her first report Ms Hunt expressed the view that any increase in contact would be likely to cause Y further distress; that serious consideration had to be given to supervised contact; and that Y’s request for no overnight contact was considered pending further assessment. Ms Hunt was highly concerned about Y’s comments, especially about harming herself.

[16]  In preparing her second report Ms Hunt observed contact between Y and E and observed Y to be overly apologetic to her father. Y told her that her father was kinder to her when [Ms Hunt] was there. She reported that Y had refused to go to school on a day that E had gone to the school to look round with his mother and that she continued to say she did not like her father: Y was still displaying anxiety and distress. The social worker noted E’s lack of awareness about the effects of his behaviour on Y. Ms Hunt reported that she had observed in E an aggressive and “sometimes conflictual tone” towards her in conversations with him. By contrast she was impressed by the ability of M and her partner to focus on Y’s needs and support her in a consistent manner by encouraging Y to have a positive relationship with her father. The report also contained references to the effect on Y’s performance at school which deteriorated at the times she had contact with her father and about which Y’s teachers were concerned.

[17]  The social work core assessment, dated 26th March 2014, advised that a report be obtained from a child psychiatrist: Y had already been referred to CAMHS (Child and Adolescent Mental Health Services) and started to see a Ms Nicholson in May 2014. The assessment set out children’s services concerns about Y which included that she felt her voice was not being heard; that she said had been smacked by her father and as a result of her worries about contact Y had difficulties in sleeping and eating and had bitten herself. Y said that E got angry with her and called her names. It was recorded that Y refused to read the weekly letters sent to her by Y. The assessment recommended that E and M attend a Family Workshop separately from Y and that agreement should be reached about medical and dental appointments to avoid Y being taken to the GP and the dentist for additional appointments by E which he did not tell M about. There was reference to parental conflict and its effect on Y, but the assessment made clear that that conflict appeared to be one-sided (from E) and to a need for greater acknowledgement of Y’s views and fears.

[18]  On the 3rd April 2014 the case came before District Judge Ralton who directed that Dr. Shirley Gracias, a child and adolescent psychiatrist, was to be instructed and her report filed by 4th July 2014. Dr Gracias did not, in fact, report until on 9th August 2014, her report contained numerous references to the acrimonious separation of Y’s parents and, as instructed, she focussed more on the parents than on the child. It was her view that it was E who seemed to have more difficulty in parenting; as she observed in her report E seemed “to struggle more with parenting and [seemed] to get frustrated and then use physical punishment”; and that it was he who would find it more helpful to receive help with parenting. Y was reported as saying that E had stopped hitting her when the social worker became involved. Dr Gracias did not consider that Y had been coached and noted the head-teacher’s observation of Y’s reluctance to interact with her father when he came to her school.

[19]  After contact with E during the school summer holidays which ended on 30th July 2014 Y refused to go to spend time with E again and no more contact took place. E applied to enforce staying contact on 22nd August 2014, there followed two case management hearings and the case was listed to be heard after 15th December 2014.

[20]  In addition to evidence prepared by Dr Gracias and social services, the guardian, Mary Dexter, prepared a report for the court dated 4th February 2015. The report set out Y’s wishes and feelings about spending time with E; she told her guardian, “If it were in a contact centre where he could not hit, I would feel a bit better but I would still not want to see him.”

[21]  Ms Dexter had had a discussion with Y’s CAMHS therapist, Ms Nicholson, who told her that to re-instate contact, would cause considerable distress, would be very difficult for the child to manage and would have a detrimental impact on her behaviour at home and at school as it had before. The therapist told the guardian that when she first met Y she was nervous and anxious, and had appeared to be in considerable distress when talking about her father. “However following her refusal to see her father in the summer …Y seemed to be much more relaxed and happier.” Within the therapy sessions resumption of contact was considered by Y who refused to see E and would not change her mind. Ms Nicholson had wanted it recorded that “children have a right to be heard and I would be very saddened to learn that [Y] is not being listened to by the people around her who are charged with making these decisions, especially considering how brave she has been in telling people what she wants.” Ms Nicolson’s work with Y came to an end in December 2014.

[22]  The guardian reported the views of the then allocated social worker (Shanelle Davis) who shared the concerns of the therapist, and of the chair of the Child Protection Conference, which had taken place on 28th January 2015, Ms Davey. Ms Davey was very concerned that during the conference E had not been sensitive to, or empathetic with, Y’s emotional needs and that he had struggled to listen to alternative view-points or look at things from his daughter’s perspective. At the conference Y’s head-teacher had asked that any contact arrangement should not include the school so that it could remain a safe place for Y.

[23]  The guardian concluded that she could not recommend that contact should be reinstated against the child’s wishes. She based her decision not on the issue of “parental conflict” and its effect on Y but on the concerns voiced by Y herself and the effects of resuming contact on the child based on her own and other’s professional opinion. In February 2015 Y was seen by her guardian and they discussed what made Y feel safe. This included Y’s description of her feelings about her father who she said “makes me quite tense because he has been mean to me and I don’t really like it when he turns back into nice again. My dad gets cross; like sometimes send me to his room, sometimes he smacks me sometimes hold me and drag me where he wants me to go…because he has these boots for me quite small for me and I told him I don’t want to wear them but he does not listen to me and gets really cross…really cross, goes quite red and he is like really tight and stuff and upset and drags me.”

[24]  The guardian reported that there was no evidence from any of the professionals involved in Y’s life that supported any suggestion that Y had been overtly influenced to make false allegations about her father. The child spoke about her father’s behaviour being unpredictable and remained fearful of the “mean” behaviour of her father during good times. On E’s part he continued to refuse to accept his behaviour toward Y could play any part in her refusal to see him.

[25]  The guardian said that it was unfortunate that the Family Therapy planned to enable a parental focus on Y’s needs had ended with the therapist without optimism for future progress, and it was the view of the guardian that the “parental conflict” focussed on by Dr Gracias had not been resolved and that it was unlikely that it would be resolved within Y’s timeframe. The guardian’s conclusions regarding this were reached, in part, as a result of her enquires with the therapists who had been providing family therapy for E and M and it was her conclusion that E had been less than candid with her about the reasons that therapy for the parents had come to and end, because the explanations provided by E directly conflicted with those of the therapists.

[26]  The guardian concluded “unable to dismiss [Y’s] concerns regarding contact with her father. Y has illustrated how those incidents occur and also that her father behaves differently when others are present.” It was her view that if contact between Y and her father were to be reinstated it would cause considerable distress to Y and she would find it very difficult to manage.

Hearing and judgment February 2015: Grounds of Appeal

[27]  Thus when the case came to court on 16th February 2015 there was a history of professional concern regarding Y and the distressing behaviour she exhibited as a result of spending time with E. Most of the independent professional evidence before the court was that contact should not be reinstated, yet E applied for Y’s residence to be moved so that she lived with him. The evidence did not change during the trial except that Dr Gracias no longer supported any further attempt at family therapy with a view to the resumption of contact.

[28]  The documents filed by E in support of his application for permission to appeal are lengthy often amounting to no more than an incoherent peregrination over the facts of the case and his interpretation of them. Pulling the documents together with the grounds of appeal prepared by Mrs Moore on his behalf it would appear that the appeal is formed of two principal grounds; that the recorder’s decisions were unjust because of a serious procedural irregularity regarding the exhibits to E’s statement filed on the morning of the trial. Secondly that, in any event, the recorder’s decision was wrong and should be set aside.

[29]  The first ground relying on procedural irregularity succeeds only as it applies to the application under s 91(14).

[30]  The second ground does not succeed as the decisions of Ms Recorder Clayton as set out in her judgement cannot be said to be wrong. The orders made in respect of Y are consistent with her findings and with the child’s welfare needs. As is clear from the background to the case and the evidence before the court the conclusions reached by the recorder were based on evidence before the court in respect of this child, the effects on her and the harm she suffered as a result of the time she spent with E.

[31]  Throughout the hearing both E and M were not legally represented, but E was assisted by a paid McKenzie friend. On the face of it between the parents if there was any advantage as to representation or assistance in court it lay with E rather than with M. The child was represented by counsel, Mr Williamson and the court relied to some extent on the assistance of counsel for the child. In providing assistance to the court, as all counsel are required to do, he did all he could to further the overriding objective as provided by rule 1.3 of the FPR 2010; and his assistance by itself does not constitute any procedural irregularity as suggested on behalf of E . One of the many complaints made by E was that the court was unduly influenced by Mr Williamson and that he had helped M during the hearing which had been to E’s disadvantage and was unfair. The transcripts of the hearing, seen by this court, of the submissions made to, and dialogue between, the judge, counsel for the child, M and E (with the assistance of his McKenzie Friend) which E relies on contain nothing that could form the basis for such a claim.

[32]  The cases of M and that advanced by counsel for the child were in many if not most respects similar. There was nothing sinister or conspiratorial in this, any more than in any other family proceedings where the case put on behalf of the child coincides with that put by a parent. It is the duty of guardian to safeguard the interests of the child in the manner prescribed by statute: s41 (2) (b) and s41 (6A) CA and FPR 2010 rule 16.20 and PD 16A. By following her instructions, as counsel for Y, Mr Williamson acted in accordance with that duty based on the guardian’s analysis of the case and nothing on the facts of this case supports a contrary suggestion. It would seem that E allowed himself to fall prey to a belief that a coalescence in the positions taken by the guardian and M amounted to procedural unfairness. While this may be, to some extent, understandable in a litigant it does not form a basis for appeal.

[33]  Similarly the assistance rendered to the court by counsel for the child cannot form the basis of an appeal unless there is something in it to substantiate E’s claim that he was placed in an unfair or disadvantaged position. At the outset of the hearing E applied to file a further statement and over 130 pages of exhibits many of which were emails which he said were evidence in support of his application. The recorder gave a preliminary judgment in which she set out her decision to allow E to put in evidence some but not all of the documents and she allowed E to refer to any document she had not allowed in during his cross-examination of M or any other of the witnesses. The documents that she allowed in formed part of the trial bundle and E was permitted to refer to the remainder of the documents and pictures during the hearing.

[34]  Most of the first day of the trial was taken up with this issue and it is pertinent that the recorder had only three days in which to hear the case so that the time which she could allocate to it was limited. It is apparent from the transcript that she did, indeed, consider and accept some assistance from counsel for the child: in this the recorder was following a pragmatic and well established practice as the child’s counsel was, as is often the case where the parents do not have the assistance of legal counsel, the only lawyer able to assist the court. The approach that was taken by the recorder was measured, and she considered the application by E with some care as is evident both from the time that she spent on it and the judgment that she gave explaining her decision.

[35]  The recorder allowed E to file his statement and the documents exhibited as 1 and 2; namely a Cafcass safeguarding letter and notes from the Coram advocates which were prepared for the court. She did not permit him to exhibit number 3, a number of email exchanges between himself and M, but allowed him to refer to any of them when M gave evidence. Exhibit number 4 consisted of emails with which E wished to establish his commitment to contact; however as that was not at issue before the court there was no evidential need for them to be exhibited. The recorder permitted E to file exhibit 5, emails about the therapy or counselling for the parents to which the guardian had referred in her report. Exhibits 6 and 7 referred to schooling which was not at issue as the court was concerned with child arrangements as between the parents rather than the schooling of the child. The recorder allowed in pictures of E and Y.

[36]  This approach to case management and the evidence required to be considered by the court taken by the recorder was proportionate and in keeping with the over-riding objective as contained in rule 1 of the FPR 2010. In particular, given the length of time available for the hearing and the issues before it, the recorder’s decisions as regards this evidence ensured that the matter was dealt with expeditiously and fairly, and in a manner that was proportionate to the nature, importance and complexity of the case as set out in FPR 2010 rule 1.1 (2) (a) and (b), and within the time allotted to the case given the court’s duty to have account to the need to allot other resources to other cases under rule 1.1 (2) (e). There is nothing in the transcript of the exchanges with the recorder regarding the filing of E’s evidence or in the recorder’s conduct of the case when considering the preliminary issue regarding admission of the material and content of that material sought by E which could give rise to a claim of procedural irregularity.

[37]  There was no objective or independent evidence before the court to support E’s case that he suffers from dyslexia and was particularly disadvantaged to the extent that it would have affected his ability to conduct his case. E seemed well able to articulate his reasons for wishing to adduce the documents in the oral submissions in the transcript provided to this court and to prepare his written evidence for use in the hearing. There is no basis in his claim that he was undermined in his ability to put his case by the recorder’s approach to the evidence that he filed at the outset of the hearing.

[38]  In her judgment Ms Recorder Clayton set out the position of the parties and the evidence that she had heard in a commendably succinct manner at paragraphs 26 to 29. She heard the oral evidence of both parents. She heard from three professional witnesses all of whom expressed the view in their oral evidence that direct contact between Y and her father was not in the child’s best interests. E had had the opportunity to challenge the evidence of each witness. At paragraphs 30 (i) to (viii) the recorder correctly set out the legal principles to be applied in this case in respect of the child.

[39]  The recorder set out in some detail the evidence of M noting that she had been cross-examined by E for almost two and three quarter hours, allowing ample time for challenge, and had, in the judgment of the recorder, answered all questions put to her with candour and courtesy. The evidence of M included reports that Y had complained about E’s treatment of her and had since July 2014 she had refused to have any contact with him. Y was said by her mother to have shown real distress, to have hit herself, bit herself on the leg, was fearful of going to sleep, talking to herself and writing herself notes in derogatory terms such as, “I hate you [Y]”, “Fucking hell [Y], you are fucking hard work,” and “You are so stupid [Y].” M had told the court in her evidence that she had tried to discuss Y’s distress with E but had met with denial and an assertion that Y had a good time with him.

[40]  Further evidence regarding Y’s distress over contact, and E’s refusal to accept it, was given by Ms Hunt who told the court in her written and oral evidence that E was unable to acknowledge Y’s views about contact and she had had difficulty in discussing them with E as he did not accept or acknowledge them. In paragraph 68 when considering the evidence of the SW the recorder makes the one reference in the whole of her judgment to a past concern about allegations of sex abuse as it formed part of the background to the police interview which took place in February 2014. At no point in her judgment does the recorder suggest directly or obliquely that she has made or will make a finding in respect to those allegations, yet the Appellant pursued this single reference to the context of the police interview as a part of his ground of appeal: as it only amounts to a factual observation regarding the circumstances of the interview it does not form a legitimate ground of appeal.

[41]  The evidence of Ms Hunt was that E had struggled to acknowledge M’s partner’s role in supporting Y, but that in her view, M’s partner had “prioritised Y’s needs far and above any issues of conflict.” It remained her evidence that the case went beyond relationship difficulties between Y and her father; that Y’s emotional needs remained unacknowledged and unaccepted by E; and that Y had talked extensively about her father becoming cross and angry with her. Ms Hunt’s evidence was that she, herself, had experienced E as at times confrontational with little engagement and she had experienced his anger and his hostility about M’s partner. Ms Hunt said she had never had any concerns that M or her partner were blocking contact and had witnessed positive encouragement from them. She remained of the view that if contact was resumed there would be a significant impact on Y and it would cause Y significant harm.

[42]  The recorder set out in her judgment that Dr Gracias’s evidence that Y experienced her father as being relatively easily angered and that E said things about M, but that M did not say things about E to Y. Dr Gracias considered Y’s self harming to have arisen out of a sense of frustration and anger about the situation she was in and she did not think Y presented as coached. It was her opinion that to resume contact would put Y back in a position that would be terribly damaging. She thought that there had to be a time limit for the child in respect of effective therapy and that time had come for Y. Dr Gracias was worried about the responses from E and his comments about therapy. She told the recorder that contact should not resume as Y needed “stability and security at this time.”

[43]  The evidence of E was set out at paragraphs 47 to 64. E described experiencing Y bed-wetting and getting angry in 2011. He had admitted to hitting Y once or twice “a long time ago”. He said that on one occasion it was because Y had hit him first. The recorder made reference to E’s lack of any acknowledgement of any failings on his part. Notwithstanding the evidence of Ms Hunt and Dr Gracias about the effects on Y, E said that the court should order six or seven sessions of therapy for Y and himself at once. E had admitted in cross-examination that he had given the guardian several reasons for the therapy coming to an end, including that the therapists were moving away, which was not true. In his oral evidence he said he did not continue to pursue his application that Y should live with him but that he wanted Y to stay with him three weekends out of every four and for three quarters of the school holidays to improve his relationship with Y. The recorder observed that she was struck by how little he referred to Y’s needs and she agreed with counsel for the child that E focussed more on the adults than the child.

[44]  In cross-examination it was put to him that he should not return to court for three years and he could not say that he would not wish to have further litigation. It is accepted that this was the first time he was made aware of the application for a s91 (14) order.

[45]  The oral evidence of the guardian was consistent with her report. E had told her that the family therapy could not continue as the therapists were closing their practice and moving out of the area but this was contradicted by the therapists themselves. The guardian confirmed her recommendation that Y should live with her mother and have only indirect contact with E which would provide a path for future contact and that M should send E a monthly report on Y’s progress. The guardian recommended that school should be a safe place for Y so there should be a PSO forbidding E from attending school unless it is for a pre-arranged visit when Y was not there.

[46]  The guardian asked the court to make a s91 (14) CA order restricting E making applications without permission from the court for a period of three years because he would not agree to do so voluntarily. The purpose of application was to allow Y a period of stability at the end of which she would be eleven and a half, and better able to articulate her own views. The guardian told the court that she believed that E’s denial of any responsibility for the way Y feels or to give any credence to what Y says led her to conclude that he would return the case to court swiftly after the proceedings concluded and that Y needed time to recover.

[47]  In her judgment the recorder considered the submission made by E and by Mr Williamson for the child and those made by M. She set out her findings and her reasons for each finding with reference to the evidence before the court. The recorder found there was evidence of E being controlling which had included the volume of emails he sent to the professionals involved and the letters sent to Y each week, providing her with another copy of any letter she had rejected. E was found to have ended the therapy and then to have tried to mislead the guardian about the reasons for it coming to an end. E was found to put his own needs before Y’s: in his own evidence he suggested a level of contact beyond anything advised by the professional witnesses, did not take into account either the distress Y would experience or her needs including a need to spend weekends and holidays at home with her mother and family. Consistent with all the evidence before the court Y was found to have experienced her relationship with her father to be frightening at times. It was found that there had been occasions when E had smacked Y in “the context of inappropriate chastisement” which was based in part on his oral evidence.

[48]  The recorder found that M was not implacably hostile to Y spending time with E nor had she put Y in the position of having to choose between her parents. The evidence of the professionals accepted by the recorder was that both M and her partner had supported a relationship between Y and E and had been proactive in trying to maintain Y’s time with E, but that E was not open or receptive to information that they passed on. The recorder found that the harm that would be suffered by Y if she were forced to spend time with E against her wishes would be more considerable and more likely to occur than the harm she may suffer if she loses her relationship with him, a finding that was consistent with the weight of the professional evidence before the court. The recorder accepted the evidence of Dr Gracias that Y may not lose that relationship if given time free from proceedings and conflict.

[49]  As she was required to by statute, the recorder considered the child’s welfare with express reference to the welfare checklist as set down in s 1(3) at paragraphs 107 to 113 of her judgement, again with reference to the evidence she had read and heard. She considered the harm Y had suffered or was at risk of suffering by referring to the evidence that Y had exhibited “extreme behaviours” including self harming and self abuse and that Y had settled only after intensive therapeutic support from CAMHS and a period of time during which she had not seen her father. The recorder made reference to the conflict that the child felt in her relationship with her father, and concluded that he was unable to meet her emotional needs. None of her findings are or could be said to be wrong either on the basis of the evidence before the court or in the reasons that she gave for coming to those conclusions.

[50]  In deciding what orders to make the recorder considered the need to keep communication open so that direct contact could take place in future. At paragraphs 115 and 116 the form which that communication should take was set out, including for letters from E to Y at a reduced frequency of once a month, and information from M once a month. This decision was based on, and was congruent with, the evidence and expert opinion before the court and the child’s needs. As was her decision to make a PSO forbidding E from attending Y’s school without prior agreement at a time when Y is absent from school.

[51]  At paragraph 118 the recorder set out her reasons for making an s91 (14) order restricting E’s ability to make applications to the Family Court regarding Y without having first received permission from the court to do so. The reasons that she gave related to Y’s welfare and to the ten months of therapy and three years of court proceedings the child had already been subjected to. It might be right to conclude on proper consideration that further proceedings should not be brought within the next three years in the interests of the child’s welfare and to conclude that E was likely to return the case to court within a short period and that Y’s welfare would be best served by restricting any application by E, but the recorder failed to carry out the balancing exercise between Y’s welfare and E’s right to bring proceedings before the court in that single paragraph.

[52]  The recorder should have applied the guidelines set out by the Court of Appeal Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 420 which have been approved in numerous subsequent decisions, including Re G (Restricting Contact) [2010] EWCA Civ 1550, [2010] 2 FLR 692. Furthermore although she had made reference to Re C (Litigant in Person: s 91(14) Order) [2009] EWCA Civ 674 earlier in her judgement she failed to apply its guidance when it came to the application of the principles, specifically that it is wrong in principle, except in exceptional circumstances, to place a litigant in person in the position of having to confront the making of a s91 (14) order at short notice.

Section 91(14) 

[53]  As observed by Lord Justice Wilson (as he then was) in the case of Re A (Contact: Section 91 (14)) [2009] EWCA Civ 1548; [2010] 2 FLR 151 the Court of Appeal “spends a surprising and unfortunate amount of its time in reversing orders made on the inappropriately summary basis here exemplified.” Despite those comments and many others made in the decisions of this court this continues to be the case. Not only was the guidance given by Lady Justice Butler-Sloss (as she then was) in Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) not referred to by the recorder she did not follow or apply it when she should have carried out a balancing exercise between the welfare of the child and the access of a litigant to the court. Although the welfare of the child remains the paramount consideration the recorder did not sufficiently consider and balance the competing rights and interests.

[54]  The first that E heard of the s91 (14) application, made on behalf of the child, was during cross-examination. It is of the greatest importance that the party, parties or other persons affected by an order restricting access to the court, particularly if they are in person, are given the opportunity to understand that such an application is being made and the meaning and effect of such an order, and, that there is a proper opportunity to make submissions to the court.

[55]  It is not acceptable to suggest that having had the application sprung on him in cross-examination E was afforded sufficient opportunity to deal with, understand and prepare submissions in response because the case did not conclude until the following day. An application for a s 91(14) order should be issued in advance and supported by evidence unless there are urgent and exceptional circumstances. There was no urgency in this case which required the court to dispense with the guidance, and no reasons were given for doing so; Re M (Section 91(14) Order) [2012] EWCA Civ 446, [2012] 2 FLR 758.

[56]  On this one issue I would allow E’s appeal. I would direct that the application for a s 91(14) on behalf of the child should be remitted to be heard at the Family Court at Swindon; in the first instance, before the Designated Family Judge HHJ Marshall for case management and allocation.

Lord Justice Simon

[57]  I agree.

Lord Justice Laws

[58]  I also agree.

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