E v M

Appellate intervention in child-arrangements decisions is unwarranted where the trial judge’s findings are properly grounded in the evidence and consistent with the child’s welfare. An order under the Children Act 1989 section 91(14) restricting future applications requires procedural fairness. The affected party, particularly a litigant in person, must receive advance notice, understand the application and its effect, and have a proper opportunity to make submissions. The application should normally be issued and supported by evidence, unless urgent and exceptional circumstances justify a different course. The court must balance the child’s welfare against the litigant’s access to court; welfare remains paramount but does not remove that balancing obligation.

This was an out-of-time application for permission to appeal against child-arrangements orders made by Ms Recorder Clayton after a four-day trial in the Family Court at Swindon. The orders provided that Y should live with M, have only indirect contact with E, and not have telephone contact with him. They also prohibited E from attending Y’s school without prior authority and restricted further section 8 applications for three years under section 91(14) of the Children Act 1989.

E alleged procedural unfairness concerning the admission of documents and argued that the substantive orders were wrong. The central issues were whether the child-arrangements orders were supported by the evidence and welfare assessment, and whether the section 91(14) order had been made with adequate notice and procedural safeguards.

The court, in the judgment of Russell J agreed by Laws LJ and Simon LJ, allowed the appeal only in relation to the section 91(14) order.

1. The child-arrangements orders were upheld. The recorder’s findings were based on the evidence, including the professional evidence concerning Y’s distress and the likely consequences of renewed direct contact. Her conclusion that forced contact would cause greater and more likely harm than loss of the relationship was consistent with the evidence and with Y’s welfare. The indirect-contact arrangements and prohibited steps order were therefore not shown to be wrong.
2. There was no procedural irregularity in the recorder’s approach to the child’s counsel or to E’s evidence. The fact that the child’s case coincided with M’s did not itself establish unfairness. Counsel for the child was acting consistently with the statutory and procedural duties to safeguard the child’s interests. The recorder’s restriction of exhibits was proportionate case management under the Family Procedure Rules 2010, given the issues, available hearing time and need to deal with cases fairly and expeditiously.
3. A different conclusion applied to the section 91(14) application. The recorder should have applied the guidance in Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 420, as recognised in Re G (Restricting Contact) [2010] EWCA Civ 1550 and Re C (Litigant in Person: s 91(14) Order) [2009] EWCA Civ 674. The court had to balance Y’s welfare against E’s right to bring proceedings. The application should have been issued in advance and supported by evidence, unless urgent and exceptional circumstances existed. E first became aware of the application during cross-examination, and the fact that the hearing continued for another day did not provide a sufficient opportunity to understand and answer it. There was no urgency. Re M (Section 91(14) Order) [2012] EWCA Civ 446 supported that conclusion.
4. The section 91(14) application was remitted to the Family Court at Swindon, initially before the Designated Family Judge, HHJ Marshall, for case management and allocation.

1. Court of Appeal (Civil Division) allowed the appeal on the section 91(14) issue and remitted that application for rehearing.
2. Family Court at Swindon, before Ms Recorder Clayton, made the child-arrangements, prohibited steps and section 91(14) orders following the February 2015 trial.