COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(MR JUSTICE MUNBY)
(LOWER COURT No. FD03C00844)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WILSON
|IN THE MATTER OF J (a Child)|
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Miss Eleanor Platt QC And Miss Karen McLaughlin (instructed by the London Borough of Kensington and Chelsea) appeared on behalf of the local authority.
THE RESPONDENT FATHER APPEARED IN PERSON.
Ms Sarah Forster (instructed by Messrs Avadis & Co) appeared on behalf of the child by her Children's Guardian.
Mr Paul Hepher appeared on behalf of CAFCASS Legal.
Crown Copyright ©
Lord Justice Wilson:
"A third application for permission which we had hoped to list at the same time, raised the question of a section 91(14) order expressed to last until the child concerned obtained his or her majority. Unfortunately, the applicant for permission in that case did not pursue it in time for it to be listed with the current applications."
Our case today is the "third application" to which this court there referred. On 18 August 2006, being by coincidence the date when the judgment in Re S was handed down, Wall LJ and I gave permission for the present appeal to proceed.
"I am going to carry on until the truth is out."
"64. The remaining matter is the Local Authority's application for an order under section 91(14) of the Act. Any such order is of course a drastic matter. Typically such an order is made against a litigant in circumstances where that litigant has already made a significant number of groundless or unsuccessful applications to the court. [Counsel for the local authority] very fairly and frankly accepted that this was not such a case. On the other hand, the jurisdiction is not confined only to cases which have that characteristic feature. In the present case, [counsel] says there is a pressing need for such an order. The father, as the carer for [J], needs to be protected from future applications unless they have sufficient seeming merit to persuade a judge to give permission. She submits that despite the absence in this particular case of a significant track record of previous failed applications, there is real reason to fear that unless restrained in that way, the mother will make further applications. She founds herself not merely on the evidence of [the allocated social worker] but more particularly, by the end of the hearing, upon the numerous occasions during the hearing when mother said words to the effect that she would not accept the care order, she never would and she would do everything within her power, including going to Europe, to try and have it set aside.
65. In my judgment, this is a case in which it is not merely appropriate but indeed necessary to make such an order. The fact is that the mother knows what has to be done if she is to move forward. The fact is, as District Judge Black spelt out very clearly in April 2004 and in terms with which I agree, that mother cannot realistically hope to make a successful application unless she can demonstrate that she has moved forward. It seems to me that it is very much in the interests of everybody, and not least in the interests of the mother herself, that any future litigation should be subject to the regulation of the court. It may well be that the mother is not herself responsible for the whole of this history, but it is an unfortunate fact that the private law proceedings went on from 1993 until 1999 and that there has been litigation in the public law sphere since June 2001. Everyone, it seems to me, needs a break from the litigation. It will assist the mother because if she is made to go through the permission filter imposed by a section 91(14) order she will have the advantage of an early indication from a judge as to whether she does or does not have a realistic basis for making an application to the court. If she does, then no doubt permission will be granted and she will be able to make her application. If she does not, then permission will not be granted and that, I cannot help thinking, is something as much in her interests as in the interests of everybody else.
66. Mother disavowed in front of me any intention of making further applications. I do not doubt the honesty with which she uttered those words as she spoke them. But I am afraid – and the episode… in April 2004 is an example of this – that this is a case in which, as she in fact to all intents and purposes conceded in front of me, the mother has in the past said things in court, only very shortly afterwards to repudiate them on the basis that they were said in order to achieve her wider objectives. In my judgment, as I have said, a section 91(14) order is not merely appropriate, it is necessary.
67. The question then arises as to whether or not that order should be time-limited. Very frequently, and indeed most of the time, the court's preferred view is to make such an order time-limited, often for a period of either one year or two years. [Counsel for the local authority] said that but for [J's] disability and the consequent extension of the period in which he will be subject to the Local Authority's care and help, she would have been minded to seek an order expiring on his 16th birthday. But she made, as it seemed to me, the compelling point that in this particular case, for reasons which are obvious, [J] reaching the age of 16 will not have the same significance as it would for many other children, and in those circumstances she submitted that I should make the order to expire on his 18th birthday.
68. That is, I appreciate, a drastic form of order, not least bearing in mind that at present [J] is only some 12 and a half years old. But, in my judgment, it is appropriate, indeed necessary, in this particular case, in particular, as it seems to me, for this reason. It may be - I very much hope it is - that the mother will change her view of these matters, but as of the moment mother's stated position, stated more than once by mother herself to me during the course of this hearing, is that she will never change her mind and that she will stop at nothing to try and achieve her objective, which is the setting aside of the care orders and [J] returning to her care. I think I am entitled to take those assertions at face value and to attach rather more weight to them than to mother's other assertion that she does not intend to make any further applications to the court. The difficulty lf I make a time-limited order is that it may simply encourage mother to make an application the moment the time limit expires. She may understand the order as containing by implication a belief on my part that once the time limit has expired an application will be appropriate in circumstances where I fear that it may not be appropriate.
69. There is also the further difficulty presented by the fact that, given mother's current stance, it is quite impossible to predict when matters might have changed to such an extent as to justify the making of an order. If this was a mother who had embarked upon therapy with a therapist who was prepared to predict that in, say, 12 months' time things might have changed significantly, then it might very well be a case for making a time-limited order – in that particular example perhaps an order for 12 months. This, for reasons which will be apparent, is not such a case. It seems to me that I should make the order and that in all the circumstances the order I make should be expressed as expiring on [J's] 18th birthday."
"In our judgment, however, orders made without limit of time and orders expressed to last until a child is 16 should be the exception rather than the rule, and where they are made, the reasons for making them should be fully and carefully set out."
Nowadays it almost goes without saying that all orders under section 91(14) are exceptional; and such was stressed in Re P at 37G, per Butler-Sloss LJ. So this court's recent comment in Re S that orders made without limit of time or expressed to last until a child becomes 16 should be the "exception rather than the rule" means only that, along the spectrum of exceptional cases which justify an order under section 91(14), orders of such duration should be made only in respect of cases at the egregious end, which merit the strongest degree of forensic protection for the child from further ill-founded conflict.
" Thus, in each case in which s 91(14) of the Act is invoked, it behoves the court to consider carefully what mischief the section is designed to address, and in particular whether or not it is going to be possible, at the end of a defined period, to re-investigate the question, and to attempt the restoration of the relationship between absent parent and child.
 Section 91(14) of the Act has been described as both draconian and flexible. Both descriptions are apt. Its use, however, has to be carefully controlled by the court as part of its over-arching strategy, which is to preserve and foster relationships wherever possible. An order which is indeterminate, or which is expressed to last until the sixteenth birthday of the relevant child is, in effect, an acknowledgment by the court that nothing more can be done. As we have already made clear, cases in which the court reaches the end of the road do exist, and there are cases in which it is essential for the welfare of the children and the physical health and sanity of the resident parent that an indefinite halt is called to litigation. But if the court has indeed reached that stage, it needs to spell out its reasons clearly, so that the parents – and in particular the parent who is the subject of the s 91(14) order knows precisely where he or she stands, and precisely what issues he or she had to address if an application for permission to apply is going to be possible."
"That does not of itself shut the door to a future change. The Local Authority assures me, and for my part I accept their assurance, that the question of contact is kept, and conscientiously kept, under regular review. The reality, and I spell it out again so that the mother can be left in no doubt, is that contact is not going to move forward, the Local Authority is not going to agree that contact should move forward, no judge is going to agree that contact should move forward in the way the mother would seek, unless the mother can show at the very least some significant move forward in relation to the three matters identified by the Local Authority some 18 months ago – crucial amongst those of course being the therapy or counselling to which I have already made reference."
Lord Justice Dyson: I agree.
Order: Appeal dismissed.