P (A Child), Re

An order under section 91(14) of the Children Act 1989 does not require a history of unreasonable applications. Without such a history, unusual facts may justify the order, including serious harassment directed at a party and through the forensic process. A trial judge may reject a cautious expert recommendation for renewed direct contact where the judge’s findings show a real risk to the child’s relationship with the resident parent. An appellate court should not substitute its own assessment where the trial judge heard the relevant evidence and evaluated the likely impact on the family. Under the Family Law Act 1996, an adult child may nevertheless be a person associated with the respondent and may be protected by a non-molestation order.

The father sought renewed permission to appeal three orders made by Southampton County Court on 25 September 2008. The court had refused direct contact with his cognitively impaired son, continued limited indirect contact, imposed an order under section 91(14) of the Children Act 1989, and made a non-molestation order under the Family Law Act 1996. The judge found continuing harassment, including the use of forged documents, notwithstanding the father’s criminal acquittal, and rejected an expert recommendation for trial direct contact. Wall LJ had refused permission on paper. The renewed application concerned the judge’s fact-finding, her treatment of the expert evidence, the section 91(14) order and its duration, and the form of the non-molestation order.

Wilson LJ delivered the judgment, with which Holman J agreed. The Court of Appeal refused permission to appeal.

1. Contact and factual findings. A criminal acquittal did not prevent the family judge from determining the harassment allegations on the civil standard. The judge had heard extensive evidence and made grave findings about harassment, manipulation and the use of forged documents. She was entitled to reject the expert’s tentative recommendation for a trial of direct contact, having concluded that it overstated the potential benefit to the child and understated the likely impact on the mother. The Court of Appeal would have been substantially handicapped in making its own assessment of that impact and would not substitute its view.
2. Further expert evidence. Whether to adjourn so that the expert could reconsider his advice after reading the judge’s factual findings was pre-eminently a matter for the trial judge’s discretion. There was no sufficient basis for interfering with her refusal to prolong the forensic struggle.
3. Section 91(14). A history of repeated unreasonable applications is usual, but it is not essential. In its absence, facts of an unusual character may justify an order. The findings of serious harassment, including forensic harassment, entitled the judge to protect the mother against further court proceedings unless the father could show good reason for another round of litigation.
4. Duration. The judge gave an adequate child-centred explanation for making the order last 30 months, so that the child could begin and settle at secondary school before proceedings could be issued without prior leave.
5. Non-molestation order. The prohibition on communication with an adult child could not rest on the provision concerning a relevant child, but the adult child was nevertheless a person associated with the father because they had lived in the same household and were relatives. The order was therefore sustainable under the relevant provisions of the Family Law Act 1996. If communication through the mother’s solicitors became impracticable, the father could seek a minor variation, without needing prior leave under section 91(14).

There was no realistic prospect of success in any part of the proposed appeal. Application refused.

• Court of Appeal (Civil Division) On 27 March 2009, Wilson LJ, with Holman J agreeing, refused permission to appeal against the three county court orders. [2009] EWCA Civ 512.
• Court of Appeal (Civil Division) Wall LJ had previously refused permission on paper. The father renewed the application before the full court.
• Southampton County Court On 25 September 2008, Her Honour Judge Marshall refused direct contact, made a section 91(14) order lasting until 25 March 2011, and made a non-molestation order lasting for the same period.