The mother and father formed a relationship in 2013 and their daughter was born in 2015. In May 2018, the father agreed to the mother taking the child to Hungary for two weeks for the purpose of the child undergoing medical treatment. The child was not returned in accordance with the agreement. In August 2018 the mother told the father that their relationship was over and in October 2018, the child not having been returned to the United Kingdom, the father issued child abduction proceedings for the return of the child to the jurisdiction. In fact, unbeknownst to the father, the mother had already returned to the UK and in October 2018 she made an application for a child arrangements order and offered the father one hour’s contact each week to be supervised by her. The mother’s unsettled lifestyle continued, she moved to Hastings without informing the father and then in June 2019, she moved to Northern Ireland. The mother subsequently failed to comply with a court order to return the child to England and to surrender the child’s passport. As time went on concerns about the child’s welfare were such that a children’s guardian was appointed to represent the child’s interests in what was to prove to be long running and destructive private law, child arrangements proceedings. Eventually, sufficiently worried about the child’s welfare in the care of her mother, the children’s guardian took the most unusual step of making an urgent application for the residence of the child to be forthwith transferred to the father. The application was granted by the judge and the child had since then lived with her father. In her judgment, the judge summarised the endless applications and the deluge of e-mail correspondence, which had been forthcoming largely from the mother, during the course of the proceedings. E-mails making unfounded allegations of sexual abuse of the child by the father were sent to the court, the school, the GP, social services and to the police. In addition, the mother made formal complaints to her court appointed psychologist, the child’s paediatrician, the solicitor representing the child and the child’s guardian. Informal complaints were also made towards counsel representing the child. In light of that behaviour and the evidence of the court appointed psychologist, the judge made orders which (i) provided that the child should live with her father by the final confirmation of an existing interim order; (ii) provided for ongoing contact between the child and her mother on a professionally supervised basis every fortnight for up to six hours; (iii) prohibited any further application under the Children Act 1989 being made in relation to the child for a period of two years without the permission of the court pursuant to section 91(14) of the Children Act 1989. The mother appealed, on the grounds that (i) the judge was wrong to make a supervised contact order without specific provision for that contact to progress to unsupervised contact and; (ii) in any event, the making of an order under section 91(14) coupled with a supervised contact order placed an impermissible fetter on movement towards unsupervised contact and to the development of a more natural relationship between mother and child.
On the mother’s appeal—
Held, appeal dismissed. (1) Whilst in the ordinary course of events, supervision of contact should be regarded as a stepping stone to unsupervised contact, that did not mean that in an appropriate case such a route should not be deployed as a means of allowing a child to continue to have a relationship with her absent parent. The present case was one of those unhappy cases where the inability of the mother to regulate her behaviour in the interests of her child meant that the choice was not between supervised and unsupervised contact, but between no direct contact or supervised contact. The judge rightly considered the importance of contact between the child and her mother on the one hand, and the need to protect her on the other and had no alternative but to order contact to be professionally supervised (paras 29–30).
(2) It was not wrong in principle to make a section 91(14) order in addition to an order for supervised contact. It went without saying that in the same way that leave to make an application following the making of a section 91(14) order could not be conditional, equally section 91(14) could not be used as some sort of fetter designed to prevent supervised contact progressing to unsupervised contact for the duration of the order. Every case had to turn on its own unique facts but what had to be borne in mind was that whilst a court could make both a supervision order and an order under section 91(14) in any individual case, each had to be considered separately on their merits; that was not however to say that, as in the present case, the same facts and features of a case might not lead a judge to order both supervision of contact and a section 91(14) order. In the present case, the orders made by the judge, far from acting as a fetter on the establishment of a more natural relationship, facilitated contact in circumstances where absent supervision, the child’s welfare would have necessitated indirect contact only. Quite separately, the section 91(14) order was essential in order to give the child and her father much needed respite from the mother’s unremitting campaign of harassment. In cases where the judge formed the view that the type of behaviour indulged in by one of the parents amounted to “lawfare”, that was to say the use of the court proceedings as a weapon of conflict, the court might feel significantly less reluctance than had been the case hitherto, before stepping in to provide by the making of an order under section 91(14), protection for a parent from what was in effect, a form of coercive control on their former partner’s part. The prolific use of social media and e-mails in the modern world might well mean that orders made under section 91(14) needed to be used more often in those cases where the litigation in question was causing either directly or indirectly, real harm. Although an order made under section 91(14) limited a party’s ability to make an application to the court, the court’s jurisdiction to make such an order was not limited to those cases where a party had made excessive applications, although that would frequently be the case. It might be that there was one substantive live application but that a person’s conduct overall was such that an order made under section 91(14) was merited. The sort of harassment of the father seen in the present case, in the form of vindictive complaints to the police and social services, was an example of circumstances where it would be appropriate to make an order under section 91(14), even if the proceedings were not dogged by numerous applications being made to the judge. Accordingly, there was no error of law or principle on the part of the judge (paras 39–42, 53–56, 57, 58)
Maria Scotland (instructed by The Family Law Company, Exeter) for the mother.
The father appeared in person.
Andrew Bagchi QC and Matthew Fletcher (instructed by David Wilson Solicitors) for the children’s guardian.