R (Children), Re

An appellate court should set aside a family judgment for an unfair hearing only where the complaint is established on the totality of the evidence and the high burden applicable to such challenges is satisfied. Judicial control of a litigant in person is legitimate, but the judge must remain an impartial guide and must not enter the arena. Interim and protective orders require an evidential foundation and must not be punitive or disproportionate. Indemnity costs are exceptional and require litigation conducted quite unreasonably or dishonourably. Where the original contact decision is unsustainable, the appellate court may impose a conventional contact regime rather than remit the issue for a further trial.

The father appealed from orders made by Mr Justice Singer in Children Act proceedings concerning residence and contact with his two children. He had withdrawn from the hearing while acting in person, alleging that the judge’s interventions and conduct had made a fair trial impossible. The judge made extensive restrictions on contact and communication, invited psychiatric examination, ordered delivery of the children’s passports, adjourned an application under section 91(14) of the Children Act 1989, and ordered indemnity costs.

The appeal concerned whether the hearing had been unfair and whether the resulting residence, contact, protective and costs orders were justified.

1. Outcome. Permission to appeal was granted and the appeal was allowed in part. The residence order in favour of the mother was retained, but the recital and paragraphs 2–11 of the order were deleted. A conventional contact regime was substituted: alternate weekends from Friday after school to Monday morning, half the school holidays and alternate half-terms. The contra mundum injunction was also set aside.
2. The court applied the high burden identified in Jones v National Coal Board [1957] 2 QB 55 and Brassington v Brassington [1961] 3 WLR 1411. The transcript had to be assessed as a whole, recognising that tone and atmosphere could not be fully recovered from written words. The judge’s interventions were plainly excessive and some bore the mark of hostility or unfairness. Nevertheless, the complaints did not justify setting aside the fundamental residence order because the totality of the evidence showed that the judge had reached the correct conclusion on residence.
3. A judge may guide a litigant in person towards the essential issues, but must remain an impartial judicial officer. The court considered that the judge had transiently entered the arena and that this contributed to the unsustainable ancillary orders.
4. The severe reduction in contact, restrictions on communication and the remaining provisions of paragraph 3 lacked an evidential foundation. There was no evidence of domestic violence, psychiatric disorder, dangerous irrationality or a need to restrict access to the school. The orders had a punitive as well as protective flavour. The application under section 91(14) of the Children Act 1989 and the proposed psychiatric examination were described as advocacy flourishes unsupported by evidence. The passport order was equally unwarranted.
5. Indemnity costs are rare and should be confined to litigation conducted quite unreasonably or dishonourably. The father’s conduct was determined and over-ambitious, but the judge’s total condemnation of his case was inconsistent with the evidence. Standard costs, assessed if not agreed, were justified by his rejection of the proposed settlement and determination to call numerous lay witnesses.
6. The court considered a further trial of contact unattractive and imposed the substituted regime in the hope that it would provide an enduring arrangement.

• Court of Appeal (Civil Division): Appeal from orders made by Mr Justice Singer in the High Court, Family Division. Permission to appeal was granted and the appeal was allowed in part.