P v F

A Dispute Resolution Appointment may resolve or narrow issues, but it cannot produce a final order where a party continues to contest the evidence, seeks a different outcome and has not clearly consented. In that situation, the court must hear the necessary evidence or give focused directions for a final hearing.

Because contact arrangements engage civil rights under Articles 6 and 8 of the European Convention on Human Rights, a party must have a fair opportunity to challenge the evidence and make submissions. A Children Act 1989, section 91(14) order also requires procedural fairness. The court must explain the proposed order, its meaning and effect, the evidential basis and its duration, and allow representations, particularly where the affected party is unrepresented.

The father appealed against child arrangements and section 91(14) orders made by a Circuit Judge at a Dispute Resolution Appointment. The orders provided for no direct contact with the children and required the father to obtain permission before making further applications for two years.

The father disputed the Cafcass report, continued to seek direct contact and maintained that the case should proceed to a final hearing. Permission to appeal was granted on the issues whether the final order was improperly made at the Dispute Resolution Appointment, whether the procedure breached Articles 6 and 8, and whether the section 91(14) order was procedurally unfair.

1. Appeal allowed. The final child arrangements order and the section 91(14) order were set aside. The matter was remitted to a different Circuit Judge at the Family Court.
2. A Dispute Resolution Appointment is intended to identify, resolve or narrow issues, hear evidence where appropriate, and give case management directions. It may be used as a final hearing only where the parties consent or the court otherwise adopts a procedurally fair process. It cannot be used to impose a final order where a party continues to dispute the evidence and seeks a different outcome.
3. The father had challenged the Cafcass report, continued to seek direct contact and had not clearly consented to a final order for no direct contact. His confused statements were made while he misunderstood the distinction between a trial and a final hearing. The proper course was to give focused directions for a short final hearing addressing the key issues and limited evidence.
4. The Dispute Resolution Appointment determined matters engaging the father’s civil rights and his rights under Articles 6(1) and 8. The process was unfair because he lacked a proper opportunity to challenge the Cafcass report, present evidence and make submissions on contact.
5. A court may make a section 91(14) order of its own motion, but must comply with natural justice. The affected party must know that such an order is being considered, understand its meaning and effect, know the evidential basis and have a proper opportunity to make representations. Those requirements were not met, and no reasons were given for the order.

• High Court (Family Division): appeal allowed against the order of His Honour Judge Tolson KC dated 21 March 2023. The matter was remitted to a different Circuit Judge at the Family Court.