D (Children)

Contact may remain professionally supervised indefinitely in the minority of family cases where the risks of unsupervised contact require it. Positive supervised sessions do not, by themselves, remove risks established by serious prior findings and unchanged attitudes. Difficulty funding supervision does not require unsupervised contact where the risk of harm outweighs the benefit.

An order under Children Act 1989, section 91(14), is a discretionary and proportionate filter on further applications. A litigant in person must understand the proposed order and have an opportunity to respond. The family court may set payment conditions for supervision, but cannot decide a later contractual dispute with a non-party supervisor.

The father appealed orders made by Recorder Wood QC in long-running proceedings concerning his two children. Earlier findings included serious domestic violence, fabricated allegations against the maternal grandfather, coaching, and dishonesty. At the review hearing the recorder continued professionally supervised contact, required the father to pay the supervisor’s costs, and made a three-year section 91(14) leave restriction.

The appeal challenged the evidence and proportionality of supervision, affordability, the procedural and substantive basis for the section 91(14) order, and jurisdiction to determine disputed supervisor fees. The central issues were whether the orders were justified and whether the invoice dispute belonged in the family court.

Disposition. Baker J, with Lady Justice Black and Lord Justice Patten agreeing, refused permission to appeal on supervised contact and the section 91(14) order. Permission was granted on the invoice issue, the appeal was allowed on that issue, and the matter was remitted.

1. Supervised contact. The recorder was entitled to rely on the earlier findings of serious domestic violence, fabricated allegations, coaching and dishonesty, together with Dr Newman’s assessment and the absence of meaningful change in the father’s attitudes. Positive supervised sessions did not establish that unsupervised contact would be safe. Although supervision is usually a short-term stepping stone, indefinite professional supervision is lawful in the minority of cases where the risks require it. The father’s difficulty in funding supervision did not require an unsupervised order where the risk of emotional harm outweighed the benefit.
2. Section 91(14). The court applied the guidelines in Re P (Section 91(14) Guidelines) (Residents and Religious Heritage) [1999] 2 FLR 573. The power must be used carefully and sparingly, but may be exercised without a history of unreasonable applications where clear evidence shows that the child’s welfare requires a restriction. The restriction must be proportionate and its type and duration defined. The procedural guidance in Re C (Litigant in Person: Section 91(14) Order) [2009] EWCA Civ 674 was satisfied: the father understood the order and had an opportunity to make submissions. A three-year restriction was measured and proportionate, and remained a leave filter rather than an absolute bar.
3. Supervisor’s fees. Section 11(7) of the Children Act 1989 permitted the court to impose precise conditions concerning payment of supervision costs, including limits on chargeable work and payment in advance. It did not confer jurisdiction to determine a subsequent contractual dispute with a non-party. The independent social worker was not acting as a court-appointed expert, so Part 25 of the Family Procedure Rules was irrelevant. Depending on the contractual parties, the dispute belonged in the county court or could be addressed through enforcement of the earlier family-court order.
4. The issue was referred back to the recorder under rule 52.10(2)(b) of the Civil Procedure Rules for determination of the contractual parties and terms, any enforcement order or a stay pending contractual resolution.

1. Court of Appeal (Civil Division): On 11 February 2016, in [2016] EWCA Civ 89, permission to appeal was refused on the supervision and section 91(14) issues. Permission was granted and the appeal allowed on the disputed independent social worker’s invoice, with remittal to the recorder.
2. Family Court sitting at West London: Recorder Wood QC made orders on 3 April 2015 continuing professionally supervised contact, requiring payment of the supervisor’s costs, and restricting further child-arrangements applications without leave for three years.