Strand, London, WC2A 2LL
B e f o r e :
| A FATHER
|- and -
Simon Miller (Counsel) (instructed by Simon Bruce (Solicitor)Dads House Family Law Clinic) both acting Pro Bono for the Respondent
Maria Stanley (Solicitor at Cafcass Legal) on behalf of the child
Crown Copyright ©
a. The Father's application for a child arrangement order;
b. The Mother's applications for:
ii. The discharge of the father's parental responsibility;
iii. A s.91(14) order;
iv. Permission to disclose case papers to various non-parties.
Child Arrangements Applications
- Re W (Direct Contact)  EWCA Civ 999,  1 FLR 494,
- Re Q (Implacable Contact Dispute)  EWCA Civ 991,  2 FR 287,
- M (Children)  EWCA Civ 2164
Termination of PR
a. Such orders are far-reaching and exceptional.
b. Such orders seek to disenfranchise the father.
c. Orders of this gravity should plainly only be made by the court if there was a solid and secure evidential and factual basis for doing so and such orders were palpably in the best interests of the child.
d. Parental responsibility is an important status which is an incident of the family and private lives of the adults and child concerned and which is reflected in the way in which parents should exercise their responsibilities for their child. It should be rare for a father not to be afforded this status.
e. Parental responsibility describes an adult's responsibility to secure the welfare of their child which is to be exercised for the benefit of the child not the adult.
f. When considering whether to limit or restrict parental responsibility, the court is considering a question with respect to the upbringing of a child, and the paramountcy principle in s1 Children Act 1989.
g. By s 1(4), there is no requirement upon the court to consider the factors set out in s 1(3) (the 'welfare checklist'), but the court is not prevented from doing so and may find it helpful to use an analytical framework not least because welfare has to be considered and reasoned.
h. The 'no order' principle in s 1(5) of the 1989 Act applies.
i. The factors relevant to the court's consideration of the grant of parental responsibility (the degree of commitment which the father has shown to the child, the degree of attachment which exists between the father and the child and the reasons of the father for applying for the order) may be relevant at the point of considering whether to revoke or limit the exercise of parental responsibility.
j. A child will ordinarily benefit from a relationship with both parents; the significance of parenthood of a married or an unmarried father should not be underestimated.
k. The parental responsibility which attaches to parenthood may bring added commitment to the child which would be likely to be to the child's benefit. Children have a right to the benefit of a father exercising PR.
l. A significant matter of status as between parent and child and, just as important, as between each of the parents. By stressing the 'responsibility' which is so clearly given prominence in s3 of the 1989 Act and the likely circumstance that that responsibility is shared with the other parent, it is hoped that some parents may be encouraged more readily to engage with the difficulties that undoubtedly arise when contemplating post-separation contact than may hitherto been the case.
m. Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the European Convention) is engaged here in respect of all of the family members, and interference with these rights needs to be justified. The child's rights under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 to respect for their private and family life must take precedence over those held by his father: Yousef v The Netherlands (Application No 33711/96)  1 FLR 210 (paragraphs  & ).
Change of Name
a. Among the factors to which the court should have regard is the registered surname of the child and the reasons for the registration, for instance recognition of the biological link with the child's father. Registration is always a relevant and an important consideration, but it is not in itself decisive. The weight to be given to it by the court will depend upon the other relevant factors or valid countervailing reasons which may tip the balance the other way.
b. The relevant considerations should include factors which may arise in the future as well as the present situation.
c. Reasons given for changing or seeking to change a child's name based on the fact that the child's name is or is not the same as the parent making the application do not generally carry much weight.
d. The reasons for an earlier unilateral decision to change a child's name may be relevant.
e. Any changes of circumstances of the child since the original registration may be relevant.
f. In the case of a child whose parents were married to each other, the fact of the marriage is important and I would suggest that there would have to be strong reasons to change the name from the father's surname if the child was so registered.
g. Where the child's parents were not married to each other, the mother has control over registration. Consequently, on an application to change the surname of the child, the degree of commitment of the father to the child, the quality of contact, if it occurs, between father and child, the existence or absence of parental responsibility are all relevant factors to take into account.
h. these are only guidelines which do not purport to be exhaustive. Each case has to be decided on its own facts with the welfare of the child the paramount consideration and all the relevant factors weighed in the balance by the court at the time of the hearing.
Section 91(14) Prohibition
(13) Any order made under any other provision of this Act in relation to a child shall, if it would otherwise still be in force, cease to have effect when he reaches the age of eighteen.
(14) On disposing of any application for an order under this Act, the court may (whether or not 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 leave of the court
a. Section 91(14) should be read in conjunction with s 1(1) which makes the welfare of the child the paramount consideration.
b. The power to restrict applications to the court is discretionary and in the exercise of its discretion the court must weigh in the balance all the relevant circumstances.
c. An important consideration is that to impose a restriction is a statutory intrusion into the right of a party to bring proceedings before the court and to be heard in matters affecting his/her child.
d. The power is therefore to be used with great care and sparingly, the exception and not the rule.
e. It is generally to be seen as an useful weapon of last resort in cases of repeated and unreasonable applications.
f. In suitable circumstances (and on clear evidence), a court may impose the leave restriction in cases where the welfare of the child requires it, although there is no past history of making unreasonable applications.
g. In cases under para (6) above, the court will need to be satisfied first that the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the court and the all too common situation where there is animosity between the adults in dispute or between the local authority and the family and secondly that there is a serious risk that, without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain.
h. A court may impose the restriction on making applications in the absence of a request from any of the parties, subject, of course, to the rules of natural justice such as an opportunity for the parties to be heard on the point.
i. A restriction may be imposed with or without limitation of time.
j. The degree of restriction should be proportionate to the harm it is intended to avoid. Therefore, the court imposing the restriction should carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained and the duration of order.
a. Father has not made repeated applications.
b. Father has not sought to undermine in any way Mother's role as primary carer, indeed he fully accepts it.
c. There is no evidence before the court that the child's welfare needs require such an order to be made in the absence of repeated unreasonable applications.
d. There is no proper evidence that without such an order being made Mother would be subject to unacceptable strain.
In the circumstances the father submits that the making of such an order would be disproportionate
(1) All father's statements including the exhibits and his response to the mother's Schedule of allegations.
(2) The mother's and maternal grandmother's statements including the exhibits.
(3) Report of Dr. Douse.
(4) The transcripts of the father's evidence from the first and second fact-finding hearing at the Family Court sitting in Barnet (October 2019) and the Family Court sitting at the Royal Courts of Justice (April 2021).
(5) Judgment dated 29/04/2021 (Mr. Justice Williams).
(6) Chronology dated 29/04/2021 (Mr. Justice Williams).
(a) The text or summary of the court's judgment in care proceedings may be disclosed to a police officer for the purpose of a criminal investigation, subject to any direction of the court. The onus for arguing that such material should not be disclosed lies on the party contending that it should not;
(b) Other documentation relating to the proceedings may be disclosed to the police only with the court's leave. The onus for arguing that such disclosure should be made lies on the party seeking it.
"(1) The welfare and interests of the child or children concerned in the care proceedings. If the child is likely to be adversely affected by the order in any serious way, this will be a very important factor.
(2) The welfare and interests of other children generally.
(3) The maintenance of confidentiality in children cases.
(4) The importance of encouraging frankness in children's cases. All parties to this appeal agree that this is a very important factor and is likely to be of particular importance in a case to which s98(2) applies. The underlying purpose of s98 is to encourage people to tell the truth in cases concerning children, and the incentive is that any admission will not be admissible in evidence in a criminal trial. Consequently, it is important in this case. However, the added incentive of guaranteed confidentiality is not give by the words of the section and cannot be given.
(5) The public interest in the administration of justice. Barriers should not be erected between one branch of the judicature and another because this may be inimical to the overall interests of justice.
(6) The public interest in the prosecution of serious crime and the punishment of offenders, including the public interest in convicting those who have been guilty of violent or sexual offences against children. There is a strong public interest in making available material to the police which is relevant to a criminal trial. In many cases, this is likely to be a very important factor.
(7) The gravity of the alleged offence and the relevance of the evidence to it. If the evidence has little or no bearing on the investigation or the trial, this will militate against a disclosure order.
(8) The desirability of co-operation between various agencies concerned with the welfare of children, including the social services departments, the police service, medical practitioners, health visitors, school, etc. This is particularly important in cases concerning children.
(9) In a case to which s98(2) applies, the terms of the section itself, namely, that the witness was not excused from answering incriminating questions, and that any statement of admission would not be admissible against him in criminal proceedings. Fairness to the person who has incriminated himself and any others affected by the incriminating statement and any danger of oppression would also be relevant considerations.
(10) Any other material disclosure which has already taken place".
a. £54,390 as per the original order of HH J Jacklin less the £10,000 the father paid leaving an outstanding balance from the first set of litigation of £44,390.
b. £4800 being the cost of Ms King QC for 7 February 2020.
c. Litigant in person costs of £11,480.25 [|G14]
d. Costs to 24 July 2020 totalling £22,139.
e. Costs to 26 April 2021 as a litigant in person using direct access Counsel. £54,411
Since then the mother has been represented pro bono by solicitor and counsel.
c. £2,408 + £706,50 = £3,114
e. £5,172 + £1,470.21 + £31,800 (counsel) = £38,442
a. the impact on her of the proceedings which have now been ongoing for several years and the extent to which she has adjusted her domestic life and what she has provided for the child in order to put herself in a position to fund the proceedings and to make the time available to prepare for the proceedings. She says this has affected not only her social life and that of the child but also her ability to for instance fund the purchase of major items such as vehicles and has impacted upon their ability to move. Her own savings and monies which she received from her mother from the sale of property in Bulgaria have been expended on these proceedings. In addition, the maternal grandmother requires medical treatment for the peripheral neuropathy which she sustained as a result of the thallium poisoning. She has not had this as her funds have been expended on supporting the mother and the child.
b. The father's conduct in terms of the poisoning but also his approach to the litigation (as set out in the judgment) are both within the meaning of seriously unreasonable or reprehensible conduct as interpreted by the Supreme Court. The poisoning is at the most serious end of the forms of behaviour that a parent might exhibit in relation to their child and the maternal family. The father's failure to make any admissions and his tactical approach to all matters of evidence in effect putting the mother to proof or denying knowledge of documents found on the SD card and suggesting the fabrication of those documents are also litigation conduct.
c. Although the father maintains that he is unable to meet any costs order which is made against him as set out in his income and expenditure document which shows a net deficit in terms of his income and outgoings this is inconsistent with what he said in one of his statements where the father referred to the fact that he had a good income and that he owned three properties. The mother says she has sought disclosure of his financial position and he has not disclosed any material to support his bare assertions.
a. FPR 28.1 provides that the court may make such order as to costs as it thinks just. This is 'a rule of court' within s.51 Senior Courts Act 1981 which provides that costs are in the discretion of the court. FPR 28.2 applies CPR 44 (except rules 44.2(2) and (3) and 44.10((2) and (3) ). CPR 46 and 47 and 45.8 also apply.
b. The court has a discretion as to costs
c. In deciding what order to make the court will have regard to all the circumstances including
i. The conduct of all the parties. Conduct includes
d. The effect of the UKSC decisions in Re T and Re S (building on R-v-R  2 FLR 95 FPR28 and Sutton-v-Davis) in a case such as this is that the court starts from the no order principle because proceedings concerning a child are partly inquisitorial and the spectre of costs should not discourage participation in the proceedings or the possibility of cooperation in the future. In children proceedings one can generally assume both parties are motivated by concern for the child's welfare.
e. In Re: S at paragraphs 30 and 31 the Supreme Court said:
secondly, however, are there circumstances other than reprehensible behaviour towards the child or unreasonable conduct of the proceedings which might justify a costs order in care proceedings? It is clear from the authorities cited above that there may be other such circumstances in private law proceedings between parents or family members……..
I do not understand that Lord Phillips of Worth Matravers giving the judgment of the court in re T was necessarily intending to rule out the possibility that there might be other circumstances in which an award of costs in care proceedings might be appropriate and just. See also paragraph 26 in Re S
f. The principles can be applied in all kinds of proceedings concerning children regardless of whether the proceedings involve local authorities or private parties or whether the hearing a welfare, a fact-finding hearing or a mixture. Orders for costs may be made where a party's conduct has been reprehensible or significantly unreasonable but not otherwise. Conduct may include that before as well as during the proceedings and all the manner in which a case has been pursued or defended.
g. Making an order for costs may diminish the funds available to meet the needs of the family equally not making an order may also have that effect.
h. The orders the court may make include a proportion of a parties costs, a stated amount, costs from or until a certain date only, costs incurred before the proceedings have begun, costs relating to particular steps in the proceedings, costs relating only to a distinct part of the proceedings and interest of costs.
i. The court may make an order for costs subject to detailed assessment or may make a summary assessment.
j. The amount of costs will be assessed on a standard or indemnity basis, but the court will not allow costs which were unreasonably or disproportionately incurred or are unreasonable or disproportionate in amount. If assessed on a standard basis the costs will only be allowed if they are reasonably incurred and proportionate having regard to the matters set out in CPR 44.3(5). Doubts will be resolved in favour of the paying party. The court must have regard to all the circumstances and to the matters set out in CPR 44.4(3).