C (Children)

A restraint order under section 91(14) of the Children Act must have a proper foundation. The court’s wide discretion does not permit an unnecessary restriction that obstructs a parent’s access to the court, particularly where the parent’s previous litigation conduct is unremarkable. A litigant in person must have a fair opportunity to present the applications listed for hearing. Where a contact order is not working smoothly, the court that made it has a continuing responsibility to seek to make it effective. That responsibility is strengthened where a litigant in person is plainly frustrated by practical obstruction.

The father, acting in person, sought increased and unsupervised contact with his four children because an existing contact order was not operating effectively. The grandparents, who held the residence order and cared for the children, opposed the applications.

At Derby County Court, His Honour Judge Orrell dismissed both applications and made a two-year restraint order under section 91(14) of the Children Act. The father appealed, raising the fairness of the hearing and the legal basis for the restraint. The central issues were whether he had been given a proper opportunity to present his applications and whether the restraint order was justified.

Lord Justice Thorpe gave the judgment, and Lord Justice Lawrence Collins agreed. The application for permission was granted and the appeal was allowed.

1. The restraint order was impermissibly made under section 91(14) of the Children Act. Although the judge had a wide discretion, there was no proper foundation for a two-year restriction. The father’s litigation history was unremarkable, and he required the court’s assistance with the practical operation of an existing contact order. The restriction imposed an unnecessary hurdle to any renewed application.
2. The hearing had also been procedurally unfair. The grandparents’ solicitor opened the case as though she represented the applicant, while the father was treated as responding to that presentation. He did not receive a proper opportunity to present the two applications that were before the court. Their summary dismissal was therefore premature.
3. Where a contact order is not operating smoothly, the court that made it has a continuing responsibility to strive to make it work. That responsibility is particularly important where a litigant in person is frustrated by obstruction. The two applications were revived and remitted to Derby County Court for rehearing by another judge, so that the father could have confidence in the process. They were to be listed for at least one hour within three weeks, with practical arrangements made to preserve contact during the Christmas holiday.

• Court of Appeal (Civil Division) — [2008] EWCA Civ 1389: permission granted and appeal allowed. The restraint order was set aside and the two applications were revived and remitted.
• Derby County Court — His Honour Judge Orrell dismissed the father’s applications and made a two-year restraint order under section 91(14) of the Children Act.