England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT SITTING IN BRISTOL

		2 Redcliff Street, Bristol
		27th February 2015

HHJ Wildblood QC :

1. Introduction - This is the composite hearing of an application for permission to appeal by a father together with the appeal, if permission be granted, against the order of a District Judge, dated 24^th November 2014. That order, which took the form of a prohibited steps order under section 8 of The Children Act 1989, was made at a Dispute Resolution Appointment in private law proceedings following the receipt of a report by a Cafcass officer. The order further defined the arrangements that were to be put in place for the children to spend time with their father and there is no appellate challenge to that part of the order. However the order went on to state as follows:

i) By way of preamble, that the court held the view that it is inappropriate for young children to be actively engaged in political activities as they may be emotionally damaged by potentially hostile reactions from members of the public;

ii) By way of order, that neither parent is to involve the two youngest children actively in any political activity.

2. I will refer to the two younger children as A and B; they are both under ten years of age. The prohibited steps order did not relate to the three older children of the family. Those three children are C and D, who are teenagers and E, who is the middle child. The issues that were raised are matters of heartfelt importance to these parents. The father is the primary carer of two of the older children and is a parliamentary candidate for the United Kingdom Independence Party. The mother is the primary carer of the three younger children and holds different political views to those of the father. Each child spends significant amounts of time with the parent who is not the primary care of that child.
3. There have been three sets of private law proceedings between these parents. The first set of proceedings began in 2009 and resulted in shared residence orders being made by consent on 25^th June 2012 when the judge discharged an earlier order. The next proceedings began in December 2013 and related to E only. That second set of proceedings led to a slight increase in the amount of time that E spends with his mother. The order of the District Judge with which I am dealing, as drawn, refers in its heading only to E; however nothing turns on that and it amounted to no more than a clerical error remediable under the slip rule.
4. This is the third set of proceedings. These proceedings began following allegations that have no direct bearing on the issues before me but which are described in the appeal bundle at D3; I record that, in relation to the allegations recorded in paragraphs 4 and 5 of that report, they are emphatically denied by the father and there has been no trial, either civil or criminal, in relation to either of them. It is important to note that the proceedings were not brought out of concern that the father was involving the children in political activities. The mother had asked for there to be a review of the arrangements for the younger children to spend time with their father and she was deemed to have made an application to that effect.
5. Of course, the issues that I have to decide are not political. This is a legal hearing that is governed by very clear statutory principles and rules of procedure. The hearing before the District Judge was governed by the principles of section 1 of the Children Act 1989 that the welfare of the children is the paramount consideration. I wish to make it plain that I am not a member of any political party and so any political interests in this case pass me by. I judge this application in accordance with the law.
6. Publication - An officer of the press is present in court. I have referred her to Rule 27.11 of The Family Procedure Rules 2010 and also to PD27B of those rules. I explained the law to her in the presence of the parties and adjourned so that she could read the Practice Direction and the rule. She was referred to Section 97(2) of The Children Act 1989 and also to section 12 of the Administration of Justice Act 1960 and confirmed her understanding of the limitations on any reporting of this case. I am not going to explain those limitations in this judgment. If any person, organisation or party is thinking about making any aspect of this case public, they should inform themselves of those limitations. If in doubt, an application should be made to the court because breach of the law would amount to contempt which would be punishable by imprisonment, a fine or sequestration of assets.
7. Anonymised information about this case has already appeared in the press today. The father expresses his views in the press reports, without revealing his identity other than as a father and UKIP candidate. That being so I have alerted the Judicial Press Office about this case and of my intention to place this judgment on the Bailii website under the transparency provisions. I think it essential that there should be a clear and immediate record of the basis of my decision. That being so I have had to type this judgment myself immediately at the end of the hearing under pressure of time.
8. Nature of the Application for permission to appeal. The father contends that the District Judge was i) plainly wrong to make the order that she did in relation to political activity and ii) was procedurally wrong in the way that she dealt with the issue. For reasons that I will explain I intend to give permission to appeal and to allow the appeal on the basis of procedural irregularity. That means that there will have to be a rehearing of the issues before me. That being so, I do not wish at this stage to express any opinion as to whether, following a regular hearing in relation to the issues, orders to similar effect should be made. If any orders to similar effect should be made at a subsequent hearing, they could not take the form of the orders as drafted by the District Judge for reasons that I will also set out below.
9. Procedure - The father says that:

i) The District Judge was wrong not to hear evidence or at least his full submissions in relation to the need for a prohibited steps order to this effect;

ii) The District Judge made incorrect assumptions about the factual basis for such an order;

iii) The District Judge wrongly dealt with the issue without the father having notice prior to the hearing as to her intention to consider making such an order;

iv) The District Judge did not give the father an opportunity to contend that the order was neither necessary nor proportionate.

10. The mother, who is in person, contends that 99.9% of parents would recognise that their children should not be involved actively in political activities and so the District Judge was acting sensibly and fairly when faced with a father who, she says, does not share that recognition. However, she accepted before me that the father had not been given the opportunity to argue his case before the District Judge and that he made it plain throughout that he did not agree to the order that the District Judge was proposing. The mother could plainly see the difficulties that arise in seeking to upholding the decision of the District Judge.
11. The Cafcass report – The Cafcass report is in the bundle. The following parts of it are particularly relevant:

i) The only mention of political activity in the report is at D5. There the Cafcass officer stated: 'The mother has expressed concerns that the father's political views and value base are influencing the children – particularly C who can be racist and homophobic. The father has allegedly enlisted the support of his children to distribute UKIP leaflets when they have spent time with him'. That is the only reference to political activity within the report.

ii) The views of the children, which are very fully explored by the Cafcass officer, do not record any complaint by them in relation to their father's political activities or their involvement with them;

iii) The children are reported as having some other concerns about their father's method of disciplining them but were observed by the Cafcass officer to be happy in their father's company. The Cafcass officer stated at paragraph 27 that 'it is my view that, on the whole, the children enjoy the time they spend with their father and this needs to be supported…my observations of the children with their father were positive'.

12. Statements - Both parties provided brief statements for the hearing before the District Judge. The father's statement is dated 20^th November and the mother's dated 24^th November 2014 (the day of the hearing before the District Judge). There was no application in relation to the father's political activities or the children's involvement in them and therefore the father's statement makes no mention of this. The mother states in her statement at C8: 'I would like it if he respected my wishes and promised the court that he will not use the children directly in any of his political activities. I would be prepared to abide by the same promise if he so wished. Although it is apparent that the court has failed to protect certain of the children from brainwashing, since [C] has been campaigning for UKIP, is a member of UKIP youth and [E] has also attended UKIP rallies and is intent on joining UKIP youth'.
13. That is as far as any prior notice of this issue went. The father saw the mother's statement at court. He did not have any other notice prior to the hearing that this issue would be raised. It is therefore significant to note that there was no evidential material relating to any involvement or harmful consequences for the two younger children in relation to the father's political activities.
14. What happened at the hearing? Both parties appeared in person, that is without legal representation. I have studied the whole of the transcript of the hearing. I made sure that I read it through twice. Both parties were in person and the District Judge was faced with a difficult task in relation to parties who held strong views. I do not in any way underestimate the task that befell the District Judge and, by this judgment, pay tribute to her experience and exceptional industry. She knew this case well having been involved in it previously.
15. The following are some of the key parts of the transcript :

i) At page three there is the following: 'THE DISTRICT JUDGE: Yes, all right. One of the other issues she raises, and I know there is another issue in your statement that you want to raise in a minute, [father], I have not forgotten this, one of Mother's concerns is, and she is quite happy to promise in the same way but she does not like the fact that the boys are being involved in your UKIP activities and she would like you to give an agreement that you will not involve them in your UKIP, for instance, C campaigning in [X town] recently she mentions. How do you feel about that?...FATHER: I'm totally unwilling to have her dictate anything what I'm doing with the children in that respect….THE DISTRICT JUDGE: She said that she would be prepared not to involve them in any political activities as well….Father: Well, she does. She indoctrinates them, you know, so I just don't think this is on. C is very keen; he gets a lot out of it'.

ii) At page 4 the District Judge said: 'I can understand where you are coming from because you are not a UKIP supporter, yes….MOTHER: Or any political party. Is it right for a child of A's age to be going into school saying, "What did you do at the weekend? I've been to a UKIP garden party", and the other kids go, "Hey, what?" they have no idea what she's talking about. They shouldn't know what she's talking about because none of them at that age should know anything to do with politics. Isn't that to do with abusing their childhood if they're being pumped full of whatever political party?

iii) At page 5 - 'THE DISTRICT JUDGE: As I have said, children will always be very conscious about what their parents' political views are. Your political views may well be at the other end of the spectrum. MOTHER: But I wouldn't dream of taking them to any political meetings or encourage them to leaflet on the streets. C was egged by somebody. Is that right? …THE DISTRICT JUDGE: Is that right? Was C egged by somebody?...Father: He was exceedingly amused to have an egg land somewhere near his feet on one occasion. MOTHER: I do not want the younger children put in that position.

iv) Also on page 5 – 'MOTHER: And what about the younger children— THE DISTRICT JUDGE: No, I am just thinking—MOTHER : —who go into the classroom— THE DISTRICT JUDGE: Yes. MOTHER: Think about the teachers then who have to pick up the pieces, so and so's brother was egged at the weekend. The other children are too young to be worried about this and it's confusing for them'.

v) At page 8: 'THE DISTRICT JUDGE: What have you been doing with A and B at the moment so far as UKIP is concerned?...FATHER: A and B have sat on the van while a couple of the others get out and do some leafleting, that's happened about once. Then there was a garden party where they played in the garden a long way from a congregation where there was a speech going on, so they were happy and they were supervised and they didn't feel embarrassed and we all left together. So they were not put in any sort of awkward or inappropriate situation and I wouldn't do, of course…THE DISTRICT JUDGE: I mean what I would like to do is to make a neutral order which is that neither of you should involve A or B in your political activities. Now, going to a garden party, I do not regard that as political activity, that is a garden party, all right? Probably sitting on the van is not but what I am talking about is they should not be going out leafleting and actively taking part….FATHER: Well, I'm just amazed, I'm just amazed— MOTHER: [Inaudible – overlap of speech] A was encouraged to hand out a leaflet and somebody went up to her and just tore it up in her face. She's a tiny, little girl. This is really mentally challenging for them. THE DISTRICT JUDGE: Yes, look. Father, I am not expressing any political views, it is not appropriate for me to express any political views but there are a lot of people in this country who have very strong feelings about UKIP and I would not want to expose your two youngest children to emotional harm because of how people might react to them if they get involved. That is how I am looking at it, because you must accept there are a lot of people who are dead against UKIP, you understand that?

vi) At page 9 and 10 – 'THE DISTRICT JUDGE: I am worried about somebody throwing – all right, C is 15, if he is happy to get involved in UKIP then he is old enough to decide that but I am not happy with A and B being involved in political activity to the extent that somebody in front of their faces rips up a poster. That is emotionally damaging for them. That should not be happening to two little girls and I do not care whether we are talking about the Labour party, the Conservative party, UKIP, the Liberal Democrats or whatever. That should not be happening to two little girls…FATHER: Well, that's three of us agreeing then, isn't it?...THE DISTRICT JUDGE: Yes….FATHER: So what's the problem? I don't see—…THE DISTRICT JUDGE: So I am going to make an order that neither of you are to involve the two younger girls actively in political activities, so I am saying to you garden party is not a problem, sitting on the van is not a problem but they are not going out actively taking part in your political activities because there are a lot of people out there who do not like UKIP and probably a lot of grown ups will not think about the impact on children' .

16. There was no formal judgment given. The matter was dealt with as part of the discussion that took place at the hearing. There was no evidence given and the underlying facts were disputed, in particular, the extent to which the father does involve the children in his political activities and the extent to which this might have caused harm to them. The father wished to advance in full his arguments but the matter was cut short by the judge making what she perceived as a 'neutral order'.
17. The grounds of appeal - These are set out at A4 and are repeated in slightly expanded form within the skeleton argument at A1. He complains about the procedure adopted by the District Judge, the lack of formality, the lack of notice, the absence of any examination of the factual basis, or the necessity, for the order. He particularly complains that he was not given the opportunity to advance his response by evidence or submission and that the District Judge was wrong to consider that he did not act with sufficient emotional protection to the children. Further, he complains that the legal basis for the order was not sufficiently examined and that his rights under Article 8 of the European Convention on Human Rights were not considered.
18. By way of response the mother has filed a skeleton argument. She urges upon the court that the father is self focussed and that 'not once does the [father] make reference to the 'best interests of the children''. She urges the court to act to protect the welfare of the children and makes assertions that are not currently supported by any findings of a court but which will undoubtedly have to be considered at the rehearing.
19. The law relating to appeals. This appeal is governed by the provisions of Rule 30 of The Family Procedure Rules 2010. In relation to the granting of permission to appeal, Rule 30.3(7) states as follows: 'Permission to appeal will only be given where – a) the court considers that the appeal would have a real prospect of success; or b) there is some other compelling reason why the appeal should be allowed'. The prospective appeal must have realistic rather than a fanciful prospect of success according to respected case law – AV v RM (Appeal) [2012] 2 FLR 709.
20. As to the appeal itself, if permission be granted, the position is governed by Rule 30.12 (3) of The Family Procedure Rules 2010, which reads as follows: 'The appeal court will allow an appeal where the decision of the lower court was (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court'
21. Dispute Resolution Appointments – The procedure for a dispute resolution appointment, such as this was, is set out in the Child Arrangements Programme at paragraph 19. The programme can be found in PD12B of The Family Procedure Rules 2010. Paragraph 19.3 of the programme reads as follows : 'At the DRA the Court will – (1) Identify the key issue(s) (if any) to be determined and the extent to which those issues can be resolved or narrowed at the DRA; (2) Consider whether the DRA can be used as a final hearing; (3) Resolve or narrow the issues by hearing evidence; (4) Identify the evidence to be heard on the issues which remain to be resolved at the final hearing; (5) Give final case management directions including: (a) Filing of further evidence; (b) Filing of a statement of facts/issues remaining to be determined; (c) Filing of a witness template and / or skeleton arguments; (d) Ensuring Compliance with Practice Direction 27A (the Bundles Practice Direction); (e) Listing the Final Hearing'.
22. It would be singularly inappropriate for a judge at my level to think that he could give general guidance about the conduct of DRA's. I do not pretend to give any such guidance by this judgment; this is a case specific decision. I do however recognise that, up and down the country, hearings take place before Judges at all level where, as part of the discussion in court, issues are narrowed and also, on occasions, Judges resolve issues by making orders without taking oral evidence. Nothing in this judgment should be taken as affecting the existing practices that District Judges use at such hearings.
23. As long ago as December 1993, the Court of Appeal stated that a judge has a broad discretion to conduct a case as is most appropriate for the issues involved and the evidence available – Re B (Minors) (Contact) [1994] 2 FLR 1. In deciding how to conduct the hearing the judge should take into account a range of factors which include: a) whether there is sufficient evidence upon which to make the decision; b) whether further evidence would add to the decision making exercise; c) how the continuation of the case might affect the welfare of the children; d) the prospects of success of the party seeking a full trial and e) whether the justice of the case requires that there should be a full trial. Manifestly, on that latter point, the significance of the issue involved will be a material consideration.
24. Further, the manner in which a District Judge conducts such a hearing is entirely within the ambit of case management powers and there is always a strong discretionary aspect in that. An appeal court should be very slow to interfere with the case management of a District Judge, particularly one as experienced as this. This District Judge is experienced and highly respected not just in general but is well experienced in this case also, having managed it before.
25. The over riding objective in Rule 1.1 of The Family Procedure Rules 2010 requires, amongst other things, that the court should deal with cases proportionately and with a view to saving expense – as the President emphasised yesterday in Re L (a child) [2015] EWFC 15. The court has strong and valuable powers to control evidence including giving directions as to the issues upon which it requires evidence and the way in which the evidence is to be placed before the court – see Rule 22.1 of The Family Procedure Rules 2010.
26. If every issue had to be resolved on full oral evidence, with cross examination, the court process would become very slow and the lists overburdened. What is more, the interests of fairness would not be furthered since often discussion can cut through a lot of wasteful verbiage. Of course, submissions are not evidence (and surely one does not need authority for that but if so - S v Merton LBC [1994] 1 FCR 186) but the difference between submissions and oral evidence where one is dealing with litigants in person may be more fanciful than real.
27. Further, in my opinion, where the court has two litigants in person it may be completely unrealistic to expect that oral evidence would take the matter any further or provide the court with any better information than is available through the sort of discussion that occurred in this case as long as both parties are able to present their cases and arguments in satisfaction of the overriding requirements of fairness.
28. My difficulties with this case are:

i) The father had no notice before the hearing that this issue would be raised as one that was argued, let alone governed by orders;

ii) The factual underlay behind the orders is disputed and there was no written or oral evidence before the court that related to the issues before it;

iii) The contentions that the mother raised in support of the order were contested and the father did not have an opportunity to answer them. If he was not to have notice of this application for an order and was not to be allowed to give evidence about it he was entitled to the opportunity to make full submissions about it. He expressed the wish to advance his side of the story on the issues that arose and did not get it.

iv) The Cafcass report did not raise this as an issue that required intervention and there was no professional evidence before the court that supported the necessity for such an order.

v) This was an important issue in the context of this case. The order made was a prohibited steps order. Such an order should only be made for good (and, I add, established) cause and for reasons that are explained as being driven by the demands of the paramount welfare of the children. I do not think that such orders can be justified in contested proceedings on the grounds of neutrality and I do think that the decision must relate to the specific children in question. In Re C (A child) [2013] EWCA Civ 1412 Ryder LJ said: 'A prohibited steps order is a statutory restriction on a parent's exercise of their parental responsibility for a child.  It can have profound consequences.  On the facts of this case, without commenting on the wisdom of any step that either parent took or intended to take when they were already in dispute, and in the absence of an order of the court, father had the same parental responsibility as mother in relation to his son.  Once the order was made, he lost the ability to exercise part of his responsibility and could not regain it without the consent of the court.  That is because a prohibited steps order is not a reflection of any power in one parent to restrict the other (which power does not exist) it is a court order which has to be based on objective evidence.  Once made, the terms of section 8 of the Children Act 1989 do not allow the parents to relax the prohibition by agreement.  It can only be relaxed by the court.  There is accordingly a high responsibility not to impose such a restriction without good cause and the reason must be given. Furthermore, where a prohibition is appropriate, consideration should always be given to the duration of that prohibition.  Here the without notice prohibition was without limit of time.  That was an error of principle which was not corrected by an early return date because that was susceptible of being moved or vacated unless the prohibition also had a fixed end date. The finite nature of the order must be expressed on the face of the order:  R (Casey) v Restormel Borough Council [2007] EWHC 2554 (Admin) at [38] per Munby J'.

vi) Further, the District Judge was being asked to make orders that were invasive of the Article 8 rights of the father and of the children to organise their family lives together without interference by a public authority unless that interference was necessary and proportionate. That issue was not examined.

vii) Oral evidence is not always necessary (see Rule 22.2 of The Family Procedure Rules 2010). However there must be some satisfactory basis for an order if it is to be made. Otherwise the justification of the order is absent.

29. The form of the order made – The order that was made merely states that 'neither parent is to involve the two youngest children, A and B, actively in any political activity'. I am personally in no position to cast stones on the drafting of injunctive orders in the light of what was said in Re Application by Gloucestershire County Council for the Committal to Prison of Matthew John Newman [2014] EWHC 3136 (Fam) but I think that there are very real difficulties about the form of the order that was made in this case.
30. By reason of Rule 37.9(3) of The Family Procedure Rules 2010 it is a matter of discretion as to whether a prohibited steps order should contain a penal notice (In the case of …a section 8 order…the court may'…attach a penal notice). I am concerned that this order did not make plain the consequences of any disobedience, the duration of the order or the activities that were prohibited. I realise that the District Judge said that garden parties would not be covered but I think that, if this order was ever to be enforceable in any way, it needed better definition. At a DRA there would have been very little time to examine that, I appreciate. District Judges lists are stretched to snapping point.
31. The conclusion that I have reached, therefore, is the decision of the District Judge was procedurally irregular and cannot stand. I therefore give permission to appeal and allow the appeal. I direct that there be a rehearing of the issues that have been raised in this appeal before me. Paragraph three of the order of the District Judge is discharged.
32. The parties must decide whether they wish these issues to be litigated further. I urge them to reach an agreement on these issues. However, if they cannot, they will have to exchange statements and I will have to hear them as to whether there is any need for the Cafcass officer to file further evidence on this issue; I suspect that there is not.
33. I have considered whether interim prohibited steps or injunctive orders should be made restricting the father's ability to involve the children in political activities. I have concluded that they should not. I say that for these reasons:

i) Such orders could well lead me to fall into exactly the same error as I consider befell the District Judge;

ii) Both parties will know that their conduct in relation to this aspect of their parental responsibility will fall to be examined at a subsequent hearing and therefore that knowledge will, of itself, create a restraining factor;

iii) In the event that there was a need for interim relief based on any events between now and a final hearing, an interim application could be made to me. Although any such application would come before the court 'after the event', if I balance the risk of harm to the children in the interim against the potential injustice of an order being made now, that injustice is the greater evil.

34. Finally, I will release this judgment on Bailii. By this decision I mean no offence at all to the very experienced District Judge for whom I wish to record my appreciation and thanks. In choosing my words when explaining why I am allowing this appeal I hope that I have displayed an understanding of the motto 'do as you would be done by' – who knows, tomorrow another court might hear an appeal from me.

HHJ Stephen Wildblood QC

27^th February 2015.