A Father v A Mother & Ors (Appeal) (Child Arrangements and Non-Molestation Orders)

On an appeal in children proceedings, the appellate court must review the judgment as a whole and should not substitute its own assessment for that of the trial judge. Repeated dissatisfaction with adverse findings is not, without more, a ground for recusal. A court may make a non-molestation order of its own motion to protect children and support a child arrangements order, but the affected party must have an opportunity to be heard and to apply to vary or set aside the order. The duration and terms of such an order require specific justification, particularly where they extend beyond the duration of the supported child arrangements provisions. A lengthy Children Act 1989 section 91(14) order is exceptional but lawful where the court gives clear reasons connected with protecting children from harmful litigation.

The father appealed orders made by HHJ Atkinson in the Family Court at East London on 25 April 2024. The orders refused recusal, ended face-to-face contact with his teenage children while permitting child-initiated indirect contact, imposed a non-molestation order, and extended a Children Act 1989 section 91(14) restriction until the children reached 18.

The appeal concerned alleged bias and procedural unfairness, the assessment of the children’s wishes and feelings, the proportionality and procedure of the non-molestation order, and the duration and clarity of the section 91(14) order. The central issue was whether any appeal had a real prospect of success or disclosed serious procedural or other irregularity.

1. Recusal. Permission to appeal was refused. A judge’s adverse findings and continued judicial involvement do not establish actual or apparent bias. The test is whether a fair-minded and informed observer would conclude that there was a real possibility of bias. Repeated recusal requests based on continuing dissatisfaction may properly be managed by requiring a formal application. The judge was entitled to deal with the repeat request summarily, particularly because the father did not attend to pursue it.
2. Child arrangements order. Permission to appeal was refused. The first-instance judgment, read as a whole, sufficiently analysed the evidence, the children’s wishes and feelings, the risks of emotional harm and controlling behaviour, and the Guardian’s recommendation. The judge was entitled to conclude that face-to-face contact was harmful while allowing indirect contact initiated by the children. The children’s expressed wishes did not determine the outcome where the court reasonably considered that they were affected by paternal influence.
3. Non-molestation order. Permission to appeal was granted and the appeal allowed in part. The court could make an order of its own motion under Family Law Act 1996 s42(2)(b), and the existence of a penal notice on the child arrangements order did not prevent an order capable of supporting arrest on breach. The father had sufficient opportunity to be heard and was informed of the right to challenge the order. However, the order’s duration to the children’s eighteenth birthdays was not justified. It extended the prohibition on direct contact beyond the relevant child arrangements provisions, which ended at 16, and the judge had not addressed that discrepancy. The NMO was therefore set aside and remitted for reconsideration of its making, terms and duration, including any exclusion zones.
4. Section 91(14). Permission to appeal was granted but the appeal dismissed. A section 91(14) order may be made of the court’s own motion and may last until a child reaches 18. Such an order is exceptional and requires clear reasons. The judge gave sufficient reasons based on the father’s harmful use of litigation and the need to protect the children from further turmoil. The term “minority” was sufficiently clear in context, and the order did not require the court to prescribe exhaustively in advance what future conduct would justify permission to apply.

• Family Court at East London: HHJ Atkinson made the appealed orders on 25 April 2024.
• High Court (Family Division): permission to appeal was refused on recusal and the child arrangements order; permission was granted on the non-molestation and section 91(14) grounds. The section 91(14) appeal was dismissed. The non-molestation order was set aside and remitted to HHJ Atkinson for reconsideration, together with the duration and consistency of the relevant orders.