C (A Child), Re

An appellate court reviewing a discretionary contact decision considers the evidence available to the trial judge. Later developments must ordinarily be addressed by a fresh application to the trial court.

An order under section 91(14) of the Children Act 1989 is exceptional. The court must consider its duration carefully so that access to the court is not unnecessarily impaired. A person affected, especially an unrepresented litigant, must understand the proposed order and its effect and have a proper opportunity to make submissions before it is made.

The mother applied in the Gloucester County Court for unsupervised contact with her child. Her application was dismissed because there was no medical evidence to support her case and the social-work evidence supported continued supervision.

His Honour Judge Harington also made a five-year order under section 91(14) of the Children Act 1989, preventing the mother from making further applications concerning the child without permission. The father had sought that order without a formal application, and the unrepresented mother had received no notice of it.

The appeal raised whether the contact decision was open to appellate challenge and whether the section 91(14) order had been made fairly and proportionately.

1. Appeal allowed in part. The court refused permission to challenge the continued supervision of contact. The trial judge had sufficient material to exercise his discretion, and there was no error of law, defective balancing exercise, or plainly wrong conclusion. The Court of Appeal could not investigate the subsequent cessation of contact. That development had to be raised by a fresh application in the county court.

2. The five-year order under section 91(14) of the Children Act 1989 was set aside. It had been made without notice to an unrepresented mother who had a relevant medical history. She had not been told that the order was sought, its effect, or her right to seek an adjournment and oppose a formal application.

3. Thorpe LJ held that such orders are exceptional. They must not be made casually. The court must give careful consideration to duration, since an unnecessary extension may prejudice access to the court. On the facts, a five-year restriction for a child of that age was, on its face, disproportionate.

4. Wall LJ, with whose guidance Thorpe LJ expressly agreed, stated that an application should ideally be made in writing and on notice. If the issue arises during a hearing, affected persons must understand the proposed order, its meaning and effect, and have a proper opportunity to respond. Where there is a substantive objection, the application should ordinarily be made formally on notice; an unrepresented litigant may require an adjournment or permission to apply to set aside any order made.

• Court of Appeal (Civil Division) — [2009] EWCA Civ 674. Permission was refused to challenge the continuation of supervised contact. Permission was granted to challenge the section 91(14) order; the appeal on that issue was allowed and the order was set aside.

• Gloucester County Court (His Honour Judge Harington) — on 19 June 2008, dismissed the mother's application for unsupervised contact, continued supervised contact, and made a five-year order under section 91(14) of the Children Act 1989.