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FAMILY PROCEEDINGS: Re N; A v G and N [2009] EWHC 1807 (Fam)

Date:17 JUL 2009

(Family Division; Munby J; 17 July 2009)

The private law proceedings, involving an application under Children Act 1989, Schedule 1 by the mother, and residence and contact proceedings by the father, had been ongoing for over 5 years, and were acrimonious, confrontational and emotionally fraught. The guardian considered that the parents, by their behaviour towards each other and by their conduct of the litigation, had caused the child, who was now 8-years old, emotional harm. Both parties were unrepresented but each had the assistance of a McKenzie friend who had been granted a right of audience by the judge. Eventually, the parties agreed a long and complicated consent order, which, at the suggestion of the judge, focused on where the child was to spend time rather than upon issues of 'residence' and 'contact' as legal concepts. Under the order the child was to spend the majority of time with his mother, living with her in the home of the maternal grandparents, but was to stay overnight with the father midweek during the school term, every other weekend, and to spend half of all school holidays, plus special religious festivals with the father. There was to be a review of the consent order's arrangements after 6 months. Almost immediately after agreeing the terms of the consent order the father began to express reservations. He sought and obtained leave to disclose documents to the appropriate professional body so that he could complain about the jointly instructed expert consultant psychiatrist. He also sought, unsuccessfully, the committal to prison and the removal from the case of the guardian and her solicitor in relation to an admitted, mistaken, contempt of court on their part. Before the 6-month review of the consent order regime, the court required the parties to provide drafts of any orders being sought, together with full skeleton arguments, on the basis that oral argument was largely to be confined to matters of clarification and response. The father asked for no fewer than 30 orders, including a sole residence order in his favour, and produced a position statement questioning the court's jurisdiction to make a direction restricting oral argument. During the hearing the McKenzie friends managed to produce a draft consent order setting out some limited agreement on outstanding issues. The judge invited the guardian to put her written views on the situation to the court, limited to 4 sides of A4. The court directed that any response by either the father or the mother was also to be limited to 4 sides of A4. Instead the father filed a 14 page reply, plus an exhibit of a further 16 pages, in which he described the judge's direction as to the length of the parties' replies as 'unjust' and 'in breach of rules of natural justice'. The mother responded with her own submissions, also in breach of the judge's directions. The mother sought a s 91(14) order against both parents; she claimed that consent order basically worked except that the child was now asking to drop the mid-week time with his father as too disruptive. The guardian supported the making of a s 91(14) order against both parents for 2 years, with no change to the terms of the consent order.

The court declined to make any of the orders sought by either parent; the issue of s 91(14) orders was to be dealt with after the hearing. There was no need for a full hearing of either parent's applications: there was more than enough evidence and other material before the court to enable the court to make a fair and proper decision; the prospects of either succeeding at a full trial were remote; the justice of the case did not require a full investigation with oral evidence; and the further prolongation of this litigation could only be seriously detrimental to the child's welfare. Although the father could not point to any new evidence or significant change of circumstances since he agreed to the consent order, he was, in reality seeking to subvert and destroy the consent order. He had behaved in this way notwithstanding that he knew that the child desperately wanted 'the trouble' to stop. The father's behaviour was, in truth, an abdication of his duties as a father. The arrangements set out in the consent order had worked well so far, and the father was unable to argue to the contrary. The consent order could not be corrected because, as sealed, it was in the terms intended by the court. No amendment or variation was necessary to make the meaning of the order plain. The father's attempt to question the legal status of the order was unhelpful. Both parents had parental responsibility, and were equal in the eyes of the law; neither parent had a residence order, and there was no need for one, given the arrangements set out in the consent order. While it was true that no contact order could be made unless there was a residence order in place, as there was no reference to 'contact' in the order there was, accordingly, no need for a reference to 'residence'. The court rejected any suggestion that the court had no jurisdiction to approve an order by consent in these terms. In general, the court refused to embark upon non-consensual alteration or elaboration of the consent order; these parents had to begin to take several and joint responsibility as parents for the child's future, and must now buckle down to the tasks of making the consent order work and, where appropriate, giving it the necessary consensual 'tweaking'. It was for the parents to agree sensible alterations to the consent order if they wished to do so, not for the court to impose. There was no 'general principle' that a boy of this age should be with his father. Finally, the father's strongly-worded objections to court directions designed to restrain the parties to family proceedings were unfounded; case management directions of this kind were an essential feature of practice, and were not outside the competence of the court. The antics of litigants who, like this father, sought to defy, without appealing, orders which the judge to whom the case was reserved thought it appropriate to make to ensure the proper management of the case, merely redounded to the disadvantage of other litigants and other children who, patiently awaiting their turn in an already over-long queue, complied with the court's directions.