C (A Child) , Re

In private law children proceedings, a without-notice prohibited steps order is an exceptional interference with a parent’s parental responsibility. It requires a prima facie and persuasive evidential case, based on objective facts, that the respondent is likely to act in a way harmful or adverse to the child’s welfare. The applicant must give full and frank disclosure. The court must record reasons, ensure prompt service, state the right to challenge the order and limit its duration. Where allegations materially affect welfare or risk, the court must decide whether fact-finding is necessary and must not treat disputed facts as established. A Cafcass adviser who is a criminal complainant against a parent cannot advise the family court in that parent’s case. Serious procedural failures rendered the welfare decision unjust and required a rehearing.

The father appealed from a County Court order made on 6 March 2013 in proceedings under the Children Act 1989. The order prohibited him from removing his son from the mother’s care or primary school and provided for indirect contact only. It followed escalating allegations concerning domestic abuse, mental health, threatening behaviour and possible abduction.

The appeal concerned whether the order could stand where the allegations had not been determined, the father had not been properly involved in the preparation of the Cafcass report, substantial material was served on the day of the hearing, and the Cafcass adviser was also a criminal complainant. The central issue was whether the cumulative procedural failures denied the father a fair welfare determination.

The Court of Appeal unanimously allowed the appeal. The contact order was set aside and the proceedings were directed to be reheard before another judge.

1. Without-notice applications. A prohibited steps order requires a prima facie case supported by persuasive evidence of objective facts. The evidence must show that the respondent intends to exercise parental responsibility in a manner likely to harm the child or otherwise be adverse to welfare, having regard to section 1(3) of the Children Act 1989. Suspicion or anxiety alone is insufficient. The applicant must identify the underlying facts and the sources of information or belief.
2. Notice, disclosure and reasons. Exceptional urgency is required before proceeding without notice. The reasons identified in paragraph 5.1 of PD18A FPR 2010 are exclusive. The court should consider informal or short notice where possible. The guidance in In re S (A Child) (Family Division: Without Notice Orders) [2001] 1 WLR 211, Memory Corpn plc v Sidhu (No 2) [2000] 1 WLR 1443, In re M and N (Minors) (Wardship: Publication of Information) [1990] Fam 211, B v A (Wasted Costs Order) [2013] 2 FLR 958 and UL v BK [2013] EWHC 1735 (Fam) was approved and applied. Applications, orders and supporting evidence had to be served promptly, and any departure required reasons. The order had to state the respondent’s right under the Family Procedure Rules 2010 to apply to set it aside or vary it.
3. Prohibited steps orders. A prohibited steps order under section 8 of the Children Act 1989 restricts a parent’s parental responsibility by court order. It is not a power possessed by one parent to restrict the other. It requires objective evidence and good cause, cannot be relaxed by parental agreement, and should have a finite duration stated on the face of the order, applying R (Casey) v Restormel Borough Council [2007] EWHC 2554 (Admin).
4. Fact-finding and conflicts. Where safeguarding allegations are disputed, the court must decide whether fact-finding is necessary and identify the facts requiring determination. Disputed facts cannot be presented as established in a welfare hearing. A Cafcass adviser who is a criminal complainant against a party cannot continue to advise the family court in that party’s case.
5. Fair hearing and case management. Special measures may assist vulnerable witnesses, but their use for a professional witness is less likely and requires an application on notice, full reasons and a recorded determination, applying Re W (Care Proceedings: Witness Anonymity) [2002] EWCA Civ 1626. The court must use the rules and practice directions effectively, particularly with litigants in person, and may adopt a proportionate inquisitorial process to identify issues and put relevant questions.

The matter was remitted for an urgent rehearing. The child was joined and a NYAS guardian was directed to represent him. The Cafcass chronology could not be admitted without argument or directions, and a fresh report from the guardian was ordered.

1. Court of Appeal (Civil Division) The appeal was allowed on 8 October 2013. The County Court order was set aside and directions were made for a rehearing before another judge.
2. County Court On 6 March 2013, the court made an order prohibiting the father from removing the child from the mother’s care or primary school and providing for indirect contact only.