T-D (Children: Specific Issue Order), Re

A court has broad and flexible powers under Children Act 1989 to regulate the exercise of parental responsibility. In exceptional cases, it may use specific issue and prohibited steps orders to allocate or exclude parental decision-making in broad domains.

Those powers must, however, be exercised proportionately. A court should decide a crystallised and important welfare issue rather than delegate its determination to one parent. An open-ended order depriving an actively involved parent of substantial decision-making powers requires compelling justification. Where focused, conventional orders can resolve the relevant disputes more clearly and effectively, a wider allocation of overriding parental responsibility will be unnecessary and disproportionate.

The mother appealed from an order made by HHJ Tolson KC in care and private-law proceedings concerning two children who were to live equally with each parent. The order gave the father overriding parental responsibility in relation to schooling, therapy, and dealings with social workers and medical professionals, subject to consultation with the mother.

The judge had made serious findings about the mother’s controlling and obstructive behaviour, while finding the father more likely to put the children first. There was an urgent unresolved dispute about schooling. The appeal raised whether the Family Court had power to make the order and, if so, whether the order was wrong and disproportionate in this case.

1. Appeal allowed on Ground 2; dismissed on Ground 1. The court had power under Children Act 1989 to make orders regulating and, in exceptional cases, extensively limiting the exercise of parental responsibility. That jurisdiction could be exercised through specific issue and prohibited steps orders, separately or together.

2. The powers are broad but must be exercised proportionately. Orders interfere with parents’ freedom to make decisions and must go no further than necessary to secure the child’s welfare. Broad orders removing decision-making power in whole domains are exceptional. They require a sound evidential basis and may be disproportionate where ordinary, issue-specific orders would adequately address the problem.

3. A court should ordinarily determine an important issue that has crystallised. It may regulate future decisions where welfare permits, but it cannot avoid deciding an urgent schooling dispute by giving one parent an open-ended final say. Re P (Parental Dispute: Judicial Determination) was consistent with Re H (A Child: Parental Responsibility): the latter involved a welfare decision already made by the court, while the former concerned delegation of an issue presented for adjudication.

4. The judge’s factual diagnosis and wider package of shared care, supervision and swift access to the court were unimpeachable. However, the overriding-responsibility order was unlikely to be effective because its breadth and imprecision invited further dispute. The evidence did not justify excluding the mother from equal input into school choice. The school issue was urgent and integrally connected with the children’s living arrangements.

5. The order was unnecessary and disproportionate. Focused specific issue and prohibited steps orders could determine schooling and regulate therapy and professional access more clearly. The matter was remitted for urgent determination of schooling and for such further focused orders as the judge considered appropriate. There was no order for costs.

• Court of Appeal (Civil Division): appeal allowed on Ground 2 and dismissed on Ground 1: [2024] EWCA Civ 793. The specific issue order was to be replaced by focused orders following remittal.
• Family Court at Reading: HHJ Tolson KC made an equal shared-care order, a 12-month supervision order, and an order allocating overriding parental responsibility to the father in three domains on 25 March 2024.