Neutral Citation Number: [2009] EWCA Civ 1548
Case No: B4/2009/2360
IN THE SENIOR COURTS OF ENGLAND AND WALES
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NOTTINGHAM COUNTY COURT
(HER HONOUR JUDGE BUTLER QC)
LOWER COURT NO: NG09P01193
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Monday 14th December 2009
Before:
LADY JUSTICE SMITH
and
LORD JUSTICE WILSON
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In the matter of A ( A child )
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(DAR Transcript of
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The Appellant Father appeared in person assisted by his McKenzie Friend, Mr Ian Julian.
Miss Maria Mulrennan (instructed by Rothera Dowson) appeared on behalf of the Respondent Mother.
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Judgment
(As Approved by the Court)
Crown Copyright©
Lord Justice Wilson:
The solicitor for the mother:
"Good morning your Honour. First of all can I apologise for handing in the case summary so late. I had a meeting with my client on Friday and unfortunately I was before this court and not able to deal with it prior to that."The judge (apparently forgetful of her order dated 30 June 2009):"It is very difficult to tell from a file, which is not always in the best of order and there is no bundle, what exactly you are here for. This is a case which has come before these courts far too often when presumably they are reasonably intelligent people who should be able to deal with one child and contact without resorting to [court] every other minute."The solicitor for the mother:"Yes, your Honour. It is hoped that today -- the other party has had sight of my case summary and also the draft order. We have entered into discussions and there are really just two small points, if you would be minded to allow us perhaps ten or 15 minutes, that we believe we could iron out."The judge:"Yes. I really do expect there to be consent in this case and I am going to say that this matter should not come back before the court without leave....But it sounds as though you are making progress so I will let you continue."- Following an adjournment, the parties and their solicitors returned to court. The mother´s solicitor explained that some matters still remained in issue. She referred to one issue as being in relation to contact during the forthcoming Christmas and explained that the mother´s proposal was that the father should have contact from 24 until 27 December. But before the mother´s solicitor had proceeded to explain the precise issue and before the father´s solicitor had said a word, the judge indicated that she was not minded to interfere with that proposal. Then the mother´s solicitor explained the father´s aspiration that the mother should commit herself to a future renegotiation of contact and the judge correctly explained that such was beyond her power to order. Following a short dialogue, in which the father´s solicitor participated, the judge invited the solicitors to draft the orders to be made on that day and to e-mail them to the court. The parties and their solicitors thereupon withdrew for that purpose.
- In the afternoon, however, the solicitors and the father again returned to court. The mother´s solicitor explained that the mother, understanding that the only remaining task was for the solicitors to draft the orders, had left court. The father´s solicitor explained that the father now objected to the investment in the mother of a residence order on the basis that it could not be said to be better for K for such an order to be made than for no such order to be made. Unsurprisingly, in my view, the judge expressed some irritation in that regard. She pointed out that, during the two short hearings during that morning, the father´s solicitor had not indicated that the objection to a residence order was pursued. The father´s solicitor tried to explain that, during the morning, the father had been minded to concede that a residence order be made in favour of the mother only if other points, in the event not conceded by the mother, had been conceded. In my view the judge was entitled to be brisk in overruling the newly articulated objection to the residence order. There was nothing, said the judge, to substantiate the father´s alleged concern that the investment in the mother of a residence order would be misused by her as a trophy. During the short dialogue the judge revealed her overall views about the father´s approach to the litigation, by then fuelled perhaps by the unreasonable stance being displayed in relation to the residence order. "Every time an order is made", said the judge, "he goes back to court two minutes later". Later the judge added that "she is a perfectly … good mother and she has continually had to come to court because of the father". Finally the mother´s solicitor enquired about the judge´s intended duration of the order under s. 91(14). The judge´s response was as follows:
"18 months. All that means is that there has to be leave.. It does [not] mean that it stops the father making an application but there must be leave and the reason for that is that there have been too many applications to court, spurious matters, and it must be very unsettling for everybody and it is potentially upsetting for [K] and that is why the court puts them on".- I would refuse the father´s application for permission to appeal against the residence order. Belatedly instructed to oppose it on the basis that it was unnecessary, the father´s solicitor did her best. The fact, however, that the father had been prepared to concede that the residence order be made if concessions were made by the mother on other aspects in itself betrayed a lack of integrity in the father´s ultimate opposition to it. Today the father complains that his solicitor´s submissions in relation to the issue were summary and that the judge´s determination of it was equally summary. But in my experience there is often little for an advocate to say in amplification of a submission which invokes the "no order" principle in s.1(5) of the Act. Where the parents have been cooperating well without such an order, the advocate has greater argument to deploy. In this case, however, the reverse was true. In my view the judge was not only entitled but, as it happens, correct to conclude that it was high time that the court registered its view that K´s home should, for the foreseeable future, be with the mother. Indeed the curious cross-application of the father that, prior to shared residence of K, he should have sole interim residence of him in my view merited the categorical rejection of it which the judge´s investment in the mother of the order for residence of K represented.
- I would also refuse permission to appeal against each of the two provisions of the contact order to which I have referred. Brisk and cursory though the judge´s treatment of the hearing was, I cannot accept the submission of the father that his solicitor had no opportunity to raise with the judge his concern about the absence of contact on 28 December 2009 and, indeed, his concern about the failure of the proposals for contact made by the mother to replicate the ambiguous arrangements made by the magistrates for special events. Indeed, as he has demonstrated today, the father is highly intelligent and, sitting behind or alongside his solicitor, he would have been perfectly well able to remind her to raise those points even before a judge who, probably because of the pressure of that day´s list, seemed to be less than enthusiastic in helping to resolve small issues. Although this court is a demonstrably inappropriate forum for the ventilation of such issues, we have, in the course of today´s hearing, chosen to invite Miss Mulrennan, who appears today on behalf of the mother, to address us upon the two provisions of the contact order which have caused the father concern. In relation to the father´s wish to have contact with K on 28 December, instead of (so he suggested) 27 December, the mother says, through Miss Mulrennan, that, in the light of K´s absence from the mother´s home on Christmas Day and Boxing Day, some or all of the Christmas festivities of thematernal family have been rearranged to take place on 28 December. Although it is a pity that K will miss the big party with the father and his family, the basis of the mother´s opposition to the rearrangement for which he would contend seems to me to be understandable. In relation to the father´s complaint of a reduction in contact from that directed by the magistrates, reflected in the failure to replicate the provision for special events, Miss Mulrennan points, for example, to the fact that the order dated 28 September provides for contact over two weeks in each summer holidays beginning in 2010, whereas the order of the magistrates provided for contact only for one week in each summer holidays beginning in that year. Thus Miss Mulrennan rejects the suggestion that the father has suffered a net loss of time with K under the new order. Nevertheless the mother does today offer the father two additional occasions of contact each year for special events, each occasion to last no more than 24 hours and the dates thereof to be submitted by the father to the mother in writing at least 28 days in advance and not to be rejected by her save for very good reason. That gesture on the part of the mother today, made at a point when it would have been reasonably clear to her that we were not minded to grant permission to the father to appeal against the contact order, is very welcome; as is the father´s unprompted expression of gratitude to her for it. Perhaps on that small foundation the parties can try slowly to rebuild their former facility for sensible dialogue in relation to arrangements for K.
- In relation to the proposed appeal against the order under s.91(14) of the Act, I would grant permission, allow the appeal and set aside the order. There is a view among some family lawyers that the requirement of leave to make an application is a reasonable feature of many branches of the law and may be particularly valuable in family proceedings and that it casts no undue hardship upon a parent (or other person) to berequired to show to the court an arguable case in support of a proposed application under the Act before being permitted to make it. Indeed I myself might, in other circumstances, have had some sympathy for that view. But that view is, as all we family lawyers know, emphatically not the view taken in our jurisprudence about the circumstances in which it is appropriate to make an order under s.91(14) of the Act. Ever since the enunciation by Butler-Sloss LJ of 11 guidelines in Re P (s.91(14)) (Residence and Religious Heritage) [1999] 2 FLR 573 at 592H to 593F, we have known that the power to make such an order is, pursuant to her fourth guideline, to be used with great care and sparingly and is, pursuant to her fifth guideline, generally to be seen as a weapon of last resort in cases of repeated and unreasonable applications.
- In this court today Miss Mulrennan has, in my view rightly, felt unable to defend the imposition by the judge of the order under s.91(14). It was, with respect, quite out of order for the judge, after explaining that she had no bundle and that she was unaware exactly why the parties were appearing before her, to have stated that she intended to order a bar under s.91(14). Neither party had made application for it; it had not even been suggested in the mother´s case summary. The father had issued two applications under the Act and, other than in relation to his application for residence, there is nothing to indicate that they had been unreasonable. What was the evidence upon which the judge felt entitled to announce at the outset, prior to the receipt of any submissions on the point, that an order under s.91(14) was appropriate? At the very least she should have invited submissions from each solicitor about the propriety of making the order: see the decision of this court dated 23 April 2009 in Re C (Litigant in Person: Section 91(14) Order) [2009] EWCA Civ 674, [2009] 2 FLR 1461, per Wall LJ at [13(3)]. The subsection provides for the court to 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 leave of the court". But there is no specificity in the judge´s order -- set out in [7] above -- of the kinds of application not to be made without leave; and there is no person named in the order. Did the judge intend that both parents be subject to the bar? Such might be the inference from her first exchanges with the mother´s solicitor which I have quoted at [11] above. On the other hand the judge´s final comments appear to indicate that she considered that it was the father who had behaved unreasonably in forensic terms and that it was he who was the target of her order. Understandable though it was, the judge´s immediate reaction to the case, namely that it would be preferable for K if future litigation in relation to him were for a time to be controlled by order under s.91(14), was a wholly illegitimate foundation for the order in the light of the jurisprudence to which I have referred. I might add that this court spends a surprising and unfortunate amount of its time in reversing orders under s.91(14) made on the inappropriately summary basis here exemplified.
Lady Justice Smith:
- I agree. Accordingly there will be an order that: (i) permission to appeal the judge´s order in respect of residence and contact will be refused. (ii) In respect of the judge´s order under s.91(14) of the Children Act, permission to appeal will be granted, the appeal will be allowed and the judge´s order will be set aside. (iii) It will also be recorded that the judge´s order dated 28 September 2009 will be amended to record that, by consent, with effect from 1 January 2010, there will be two additional occasions for contact in each year for "special events". Each contact will last no more than 24 hours. The father will give the mother at least 28 days´ notice of each event and the mother will not refuse to allow such contact save for very good reason.