H (Children)

A family court may consider allegations relevant to child welfare even where the same allegations resulted in a criminal acquittal. Contact must be determined by the children’s welfare, assessed through the welfare checklist in section 1(3) of the Children Act 1989. Where evidence establishes risk, contact may properly be restricted to indirect contact. An order under section 91(14) of the Children Act 1989 is exceptional and must be used sparingly, but may be imposed where continuing litigation threatens the children’s welfare. The order should be proportionate and may be time-limited. The ability to seek permission for a further application means that the restriction does not constitute an absolute denial of access to the court.

Mr H, the father of three children, sought permission to appeal against three orders. The first concerned findings of historical sexual abuse made by HHJ Darwall Smith on 10 November 2004. The second was the judge’s September 2005 order restricting contact to limited indirect contact and imposing a five-year restriction under section 91(14) of the Children Act 1989. The third was Singer J’s refusal on 6 June 2006 to permit a fresh application for contact. Mr H challenged the fact-finding process, the welfare decision, the human-rights analysis and the refusal to reopen contact. The central issues were whether any appeal had a realistic prospect of success and whether the section 91(14) restriction was justified.

Disposition. Lord Justice Wall refused all three applications for permission to appeal. The applications could properly be determined in Mr H’s absence. He had received ample opportunities to obtain legal advice and representation, and the case turned substantially on facts of which he had detailed knowledge.

1. Fact-finding. A criminal acquittal did not bind the family court. The allegations remained directly relevant to the father’s capacity to care for children and to their safety. Historical abuse allegations required care, clear legal directions and a cautious assessment of the evidence. The judge had given correct directions, explained why she accepted the complainants’ evidence and rejected the father’s account, and had been entitled to make the findings. The proposed challenge was therefore one of pure fact and had no realistic prospect of success.
2. Contact. The judge had properly applied the welfare checklist under section 1(3) of the Children Act 1989. She considered the expert and guardian evidence, the social-work evidence and the children’s wishes and feelings. The evidence supported the conclusion that the father presented a risk and that supervised direct contact was unsafe. The children’s welfare, rather than the father’s needs, governed the decision. Limiting contact to three annual indirect communications was therefore open to the judge.
3. Section 91(14). The judge correctly applied the guidelines in Re P (Section 91(14) Guidelines) (Residence and Religious heritage) [1999] 2 FLR 573. The restriction was exceptional, proportionate and time-limited. The children’s welfare required respite from continuing litigation; the litigation and animosity were exceptional; and the father had notice of the proposed order. The order preserved a route back to court through permission and was justified despite its interference with article 8 rights.
4. Fresh contact application. Singer J was right to refuse permission where the proposed application sought to reopen matters recently concluded, while still under appeal, and would operate as further pressure on the mother. There was no proper basis for an adjournment, and an appeal would have no prospect of success.

• Court of Appeal (Civil Division): On 25 July 2006, in [2006] EWCA Civ 1206, refused all three applications for permission to appeal.
• High Court, Family Division: Singer J refused permission on 6 June 2006 to make a fresh application for contact.
• Principal Registry of the Family Division: HHJ Darwall Smith made findings of fact on 10 November 2004 and, in September 2005, made contact and section 91(14) orders restricting further applications concerning the children.