TF v RF & Ors

In determining children proceedings, the welfare of the children required protection from a substantial risk of abduction, continuing parental hostility and litigation that imposed unacceptable strain on the children and their primary carer.

Direct contact may be suspended, including supervised contact, where the parent’s conduct outside contact sessions creates a continuing risk of emotional harm and there is no demonstrated prospect of change. A change of surname may be authorised where it provides additional protection against abduction and is shown to advance welfare.

An order under section 91(14) of the Children Act 1989 is exceptional and must be used sparingly, but is justified where repeated and unmeritorious applications and abusive litigation create a serious risk of unacceptable strain.

The proceedings concerned two children of separated parents. The father sought residence, regular contact and other relief, including the removal of the judge and Guardian. The mother sought suspension of contact, permission to change the children’s surnames and an order under section 91(14) of the Children Act 1989.

The dispute followed earlier residence and contact proceedings. The father had been convicted of harassing the mother, repeatedly threatened to take the children to Mexico, made further applications alleging abuse and neglect, and had continued hostile and abusive communications. Supervised contact itself had been positive, but professionals considered the father’s conduct outside contact to create risks of abduction and emotional harm.

The central issues were whether contact remained in the children’s best interests, whether the surname change was justified, whether further proceedings should require permission, and whether the judge should recuse himself.

1. Disposition. The father’s applications for residence, recusal and removal of the Guardian were refused. Direct contact was suspended. Permission was granted to change the children’s surnames for all purposes. An order under section 91(14) of the Children Act 1989 was made for two years. The children’s passports were returned to the mother, subject to 21 days’ notice if she proposed travelling with them to Pakistan.
2. Contact and welfare. The children’s welfare was paramount. Although the supervised contact sessions had been positive, the decisive concern was the father’s conduct outside them. His repeated threats to take the children, disregard of court orders, abusive communications and attempts to discover their whereabouts created a significant abduction risk and exposed the children to continuing emotional harm. The court accepted the evidence of Mr Flatman and the Guardian that contact could not safely continue unless the father demonstrated sustained change.
3. Change of name. The court had to consider the children’s welfare, their existing registration under the father’s surname, the father’s commitment and parental responsibility, and whether the proposed change would improve welfare. The risk of abduction, together with the father’s conduct, justified the change as a proportionate protective measure.
4. Section 91(14). The power was discretionary and had to be exercised sparingly because it restricted access to the court. It was nevertheless justified where repeated applications, applications without notice, threats and abusive litigation created a serious risk that the children and their mother would be subjected to unacceptable strain. The order operated as a permission filter, not an absolute bar.
5. Recusal. The principles stated in Ansar v Lloyds TSB Bank plc (2006) EWCA Civ 1462 and Howell and others v Millais and others (2007) EWCA Civ 720 were applied. The question was whether a fair-minded and informed observer, considering all the circumstances, would conclude that there was a real possibility of bias. Adverse findings, judicial continuity and the father’s loss of confidence did not, without more, establish that test. The allegations were insufficiently founded and recusal was refused.

First-instance judgment. The judgment refers to an earlier judgment in the same proceedings and to the dismissal of the father’s appeal on 20 June 2007, but gives no citation for that decision.