England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
FAMILY DIVISION
(MR JUSTICE BENNETT)

		Royal Courts of Justice The Strand London, WC2A 2LL
		11 November 2003

Tuesday, 11 November 2003
1. LORD JUSTICE THORPE: With the leave of the court granted on 30 July Dr P appeals one paragraph of an order made by Bennett J on 2 July. The paragraph in question is paragraph 7, which reads:

"Pursuant to Section 91(14) of the Children Act 1989, the Applicant shall not make any further application in relation to the residence of the said child, without leave of the court."

2. Dr P says that that order cannot stand for two distinct reasons. The first is one of procedure. He asserts that the order is fatally flawed procedurally. That argument I find quite unconvincing, but nonetheless in deference to Dr P's careful preparation I will recite briefly how it goes. The respondent wife by her affidavit of 15 March 2003 had given notice of an intention to seek a section 91(14) order. She simply said:

"These proceedings are upsetting A and I do not feel he should suffer any further."

Dr P, unimpressed by that assertion, did not file any contrary evidence. However, in her position statement which was handed in on the morning of the first day of a two-day hearing, on 5/6 June, she said in paragraph 9:

"As a result of these proceedings, I have had to take 6 days off, including the 5th and 6th June. This represent more than a week in lost wages and the respondent mother is the only person who now financially maintains A, having not received any maintenance money from the applicant father since December 2002 to date. I can no longer continue in this fashion with one litigation after another. I need some peace in my life and so does A."

That position statement being handed in at the outset did not of course allow Dr P any opportunity to respond. But he did in the witness box express his view on the merit of this application. He has obtained a transcript of the relevant passage of his evidence, which is commendably brief. He said in relation to paragraph 9 of the position statement:

"The section 91(14) is completely inappropriate. The last application about A was made in the year 1995, adjudicated upon in 1996. Seven years later, unfortunately, we are back in court. It's clearly appropriate that the court does make some decision considering the position that's now been reached. I'm not in any way being unreasonable and there will not be, almost certainly, any further applications if I'm not satisfied with the result of, of this one. Umm, it seems to me that the 91(14) approach, while some litigants, and maybe some judges, get trigger-happy with 91(14), it's certainly not appropriate here."

He was not cross-examined in relation to this evidence which, in any event, held more the form of a submission, save for the passage in which he had stated his future intention. His point to the court today is that properly analysed there was no application from the respondent since she had not filed the appropriate application in Form C2 and paid the necessary fee; accordingly the judge was acting on his own motion and if so acting he was obliged to give Dr P the opportunity to address him on the law. That opportunity could only be fully given if he had indicated to Dr P that, despite the characterisation contained in Dr P evidence in chief, he was nevertheless considering making an application.

3. I find that a completely unrealistic submission. The judge was dealing with two litigants in person. The respondent had given very plain notice of the application that she was making and ultimately the grounds upon which she relied. Dr P had every opportunity to deal with that. He chose to deal with it on the basis that the application was so inappropriate that it did not require him to make a detailed response. That was an election which had its inherent danger and I do not concede that the judge had any obligation to invite Dr P to deal with the authorities.
4. Dr P adds that this procedural error was compounded by the judge's refusal to re-open the matter when he had made his draft judgment available to the parties. Having read the draft judgment, Dr P had written to the judge raising just this objection, both as a point of principle and in commenting on paragraph 68 of the judgment (which is the paragraph in which the judge reasoned the order). The judge's response was simply to say that it was not appropriate for Dr P to seek to persuade him to change his mind at that stage, and accordingly he would not respond further. I do not see that the judge was obliged to re-open the issue. He had made his position plain in the draft judgment and he was fully entitled to say that he was not minded to receive further submission.
5. I turn from Dr P's first submission of procedural flaw to his second submission, which is that this order lacks any meritorious foundation. Dr P quite rightly rests his submission on the well-known authority of Re P [1999] 2 FLR 573, and particularly the judgment of Butler-Sloss LJ, in which she lays down guidance for the future. As Dr P has reminded us, Butler-Sloss LJ carried out a careful analysis of previous authorities, both preceding and following the enactment of the present statute. She then came on to give guidance expressed in 11 paragraphs. The key paragraphs, given the fact that this is a case in which there was no history of repeated past applications, are paragraphs 6 and 7. It is necessary to set them out in full. Paragraph 6 is in these terms:

"(6) 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.

(7) 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."

Applying those two paragraphs to the present case there can be no doubt at all that the order made by the judge falls within paragraph 6; that is to say that it is an order unfounded on a past history of unreasonable applications. Accordingly paragraph 7 comes into play. It was only open to the judge to make the order if satisfied, first, that the facts go beyond commonly encountered needs; and secondly, that there was a serious risk that without the imposition of the restriction the child or the primary carers would be subject to unacceptable strain.

6. So does the judgment of Bennett J demonstrate on the facts that that second requirement was demonstrated? We have only to look to two paragraphs of the judgment. They are paragraphs 68 and 69 and I set them out in full. The judge said:

"(68) Finally, as to the application of the mother contained in paragraph 4 of her statement of 15 March 2003 under Section 91(14) of the Children Act 1989, and reiterated in her position statement of 3 June, the father pointed out in his evidence-in-chief that this round of litigation is only the second time that A's particular position has been litigated. On the other hand, the mother points out in her position statement that she has had to take time off work in order to conduct her own case and that she is now the person who is looking after A financially since she is not receiving any maintenance from the father. She says she needs some peace in her life and so does A.

(69) I recognise that to make any order under section 91(14) is draconian and that litigants should not be shut out from making applications save in exceptional cases. But I cannot see that any future application as to the residence of A is likely to serve any useful purpose whatsoever unless of course there is a very fundamental change in circumstances such as to necessitate A living with his father. I accordingly think that in the circumstances of this case that it would be appropriate to make an order preventing the father from making any further applications for residence without the express leave of the court. However I think it would be quite wrong to make an order in similar terms in respect of any application for contact. Accordingly the order under section 91(14) will be limited to the question of residence."

I will endeavour a brief analysis of these two paragraphs. In the first, the judge essentially recites the respective positions of the parties. He first records the father's witness box response to the effect there had only been one previous round of litigation in relation to A. What the judge does not record in reciting the father's case was his clear assurance that he would not, given his cumulative experience, contemplate further futile or unfounded applications. His summary of the mother's case appears more comprehensive. But when he goes on in the following paragraph to reason his decision he does not do so specifically on any of the grounds advanced by the mother in her position statement. He simply says that a future application would be unlikely to serve any useful purpose and that it would be appropriate to make an order in the circumstances of the case.

7. What is a deficit, in my judgment, is that we have no findings. The judge has made no findings in relation to Dr P's assurance that there would be no future unreasonable application. The judge has made no finding in relation to the mother's contention contained in paragraph 5 of her affidavit to the effect that the proceedings were upsetting A, nor does he make any findings in relation to her plea contained in paragraph 9 of her position statement that she could no longer continue to live in this fashion with one litigation after another, and that she needed peace in her life. The seventh guideline makes it perfectly plain that in a case where there has been no previous history of unreasonable application it is incumbent upon the court to find a serious risk that, absent the imposition of restrictions, the child or the primary carer will be subject to unacceptable strain. No such serious risk is identified by the judgment that we have reviewed, nor any specific findings from which a conclusion of serious risk is developed.
8. Accordingly, for those reasons, I would allow the appeal and set aside the order complained of. However I would just conclude this judgment by saying that in a sense the outcome represents something of an academic victory. Afterall, it does not alter anything on the ground; it does not alter any of the realities; it does not alter anything within the family relationships. Doctor P never was going to make an unreasonable application; whether there was a prohibition or no, makes no difference to the future. Dr P has said that he felt compelled to bring this appeal because he construed, alternatively he feared, that others would construe, paragraph 7 of the order of 2 July as being some sort of criticism of his professional responsibility, as one who frequently advises others on their family justice problems. Whilst I respect Dr P's interpretation, I would only say that it is not one that I myself would have thought to draw. But insofar as that consideration may have either driven or contributed to this appeal it can be laid to rest by this outcome.
9. LORD JUSTICE SCOTT BAKER: I agree. The judge did not say that he rejected the appellant's evidence that there would almost certainly be no further unfounded applications. Nor did the judge articulate how A or his mother would be subject to unacceptable strain if he did not make a section 91(14) order. He was extremely economical in his reasons for making what has appropriately been described as a "draconian" form of order. It is true that we have not had the benefit of argument on behalf of the mother. But it is clear that there had been no past history of unreasonable applications and I do not think that the material that I have seen justifies the making of an order.
10. I, too, would allow the appeal.
(Appeal allowed; no order for costs).