NA (A Child), Re

An appeal in a children case requires permission and will succeed only where the first-instance judge was wrong or there was a serious procedural or other irregularity. Appellate courts should rarely interfere with findings based on the trial judge’s assessment of witnesses. Where serious domestic violence is established, contact may properly be suspended until psychological assessment or other protective steps are undertaken, consistently with Practice Direction 12J and the child’s welfare. An order under section 91(14) of the Children Act 1989 is not an absolute prohibition on applications. It requires prior permission, and may appropriately contain an exception permitting an application for psychological assessment.

The mother sought permission to appeal out of time against orders made by HHJ de Haas QC in the Family Court at Liverpool on 5 April 2017. The orders provided that the child should continue living with her father, suspended direct contact with the mother, permitted limited indirect contact, and imposed a three-year restriction under section 91(14) of the Children Act 1989 on applications for child arrangements orders without leave.

The first-instance judge had made serious findings about the mother’s conduct, including violence towards the father and behaviour exposing the child to harm. The central issues were whether the findings were unsafe or affected by bias, whether suspension of contact pending psychological assessment was proportionate, and whether the section 91(14) order was justified.

1. Permission to appeal refused. The appellate court could interfere only if the first-instance judge was wrong or there had been a serious procedural or other irregularity. Permission required a real prospect of success or another compelling reason. No such basis was established.
2. The findings of fact were based on the first-instance judge’s detailed assessment of the witnesses and the evidence. It was difficult for an appellate court to interfere in those circumstances. The fact that a judge had repeatedly made findings against a party did not establish bias.
3. The findings amounted to serious domestic violence against a former partner. In accordance with Practice Direction 12J, the court had to ensure that child arrangements protected the safety and wellbeing of the child and the parent with whom the child lived, avoided exposing them to further harm, and served the child’s best interests.
4. Although contact is presumed to promote a child’s welfare and interruption of contact is a serious step, the findings justified suspending direct contact unless and until the mother underwent psychological assessment. The decision was within the first-instance judge’s discretion and was proportionate to the risks identified.
5. The order under section 91(14) of the Children Act 1989 was justified by the corrosive effect of long-running proceedings on the child. The Court of Appeal decision in Re P [1999] 2 FLR 573 was relied on for the applicable legal requirements.
6. An order under section 91(14) is not a complete ban on applications. It requires permission before further proceedings are started. The exception allowing the mother to apply without hindrance for a psychological assessment was therefore significant and appropriate.

The application for permission to appeal was refused. The mother was advised to seek the psychological assessment, which was the practical route towards possible restoration of direct contact.

• Family Court at Liverpool: On 5 April 2017 HHJ de Haas QC ordered that the child continue living with the father, suspended direct contact with the mother, permitted limited indirect contact, and made a three-year order under section 91(14) of the Children Act 1989.
• High Court (Family Division): Mr Justice Baker refused the mother’s application for permission to appeal out of time.