Introduction
P v F is an appeal by the appellant father, P, against an order made by His Honour Judge Tolson KC dated 21 March 2023, by which the judge made child arrangement orders (CAO) at a Dispute Resolution Appointment (DRA) providing for indirect contact only between the father and the children and an order pursuant to s.91(14) of the Children Act 1989, prohibiting the father from making further applications in respect of the children for a period of 2 years without the court’s permission. The full judgment can be found here https://www.bailii.org/ew/cases/EWHC/Fam/2023/2730.html.
Background
The case concerns twins L and C, who were 11 years old at the time of original decision in March. In May 2021 a child arrangements order (“CAO”) was made in favour of the father, providing for the children to spend time with him for one night on alternate weekends and time during the school holidays. Circumstances arose following this where the father had then not seen the children since May 2022, and in October 2022 he made an application to enforce the child arrangements order. In those enforcement proceedings, the court directed a report from Cafcass. That report was completed on 24 February 2023 and filed on 8 March 2023.
In her report, the Cafcass author detailed that the father had been very difficult to work with, highlighting issues of domestic abuse including mother’s allegations of ongoing abuse and the children’s very clear wishes not to have contact with their father. Cafcass recommended that the children continue to live with the mother in accordance with the child arrangements order, that the existing child arrangements order be varied to provide for indirect contact only between the father and the children, that consideration be given to the making of a prohibited steps order preventing the removal of the children from their paternal grandparents during visits to them and an order pursuant to s.91(14) of the Children Act 1989 preventing the father from making further applications to the court without the court’s permission.
A DRA took place on 21 March 2023. The Judge on several occasions informed the father that his choices were to either end proceedings in line with Cafcass’ recommendations or contest those recommendations at a final hearing. Father was a litigant in person and swayed in his submission’s multiple times; a transcript of the hearing demonstrates father’s conflicted views about the orders he sought which do make for a confusing read. The Judge concluded the matter by making a final order at the DRA in line with Cafcass’ recommendations.
The father sought to appeal this decision. He filed his Appellant’s notice on 30 May 2023. The President of the Family Division declined to grant permission on the grounds of appeal pleaded by the father but granted permission on the following grounds:
- i) The judge was in error in making a final Child Arrangements Order at a Dispute Resolution Appointment when the applicant was clearly not consenting to a final order for no direct contact being made;
- ii) In circumstances where the applicant did not agree to a ‘no direct contact’ order and challenged the Cafcass report, the hearing was conducted in breach of his right to a fair trial under the European Convention on Human Rights, Art6.
iii) The imposition of an order under the Children Act 1989, s. 91(14), preventing further applications, was wrong in circumstances where none of the procedural requirements necessary to establish a fair process with respect to a litigant in person were followed (see Re C [2009] 2 FLR 1461) and the judge gave no judgment in support of making the order.
The appeal was allowed.
Decision
The court was satisfied that the Judge was wrong to make a final CAO at a DRA when the father was clearly not consenting to a final order for no direct contact being made and did not agree to an order providing for no direct contact and challenged the CAFCASS report, the hearing was conducted in breach of his right to a fair trial under Article 6(1) ECHR and the procedural protections afforded by Article 8 ECHR.
Whilst a judge undertaking a DRA is required to consider the extent to which the remaining issues between the parties can be resolved at that hearing, and to assist the parties to do so with a frank evaluation of the evidence, this cannot extend to making final orders where it is clear that a party continues to contest the matter and to seek a different outcome.
The making of a final order at a DRA deprived the father of the opportunity to present his evidence and arguments with respect to the CAFCASS report. The father was further deprived of the opportunity to comment on the key pieces of evidence upon which the court based its decision and to make submissions on the proper outcome of the proceedings more widely. This in turn created a process which was not fair in accordance with Article 6 ECHR. This approach also, in the court’s view, contravened the procedural protections afforded under Article 8 ECHR.
The court was further satisfied that the Judge’s imposition of a s.91(14) CA 1989 order was wrong in circumstances where none of the procedural requirements necessary to establish a fair process with respect to a litigant in person were followed and the judge gave no judgment in support of making the order. During the course of the hearing, the judge made reference to an order pursuant to s.91(14) only once, when he made passing reference to the recommendation in the CAFCASS report that such an order be made. Thereafter, the subject of an order under s.91(14) did not form any part of the exchanges between the judge and the father. There was no discussion as to the evidential basis for an order under s.91(14) and the father was not given any opportunity to make representations with respect to the question of whether such an order should be made. The judge provided no reasons explaining why he had chosen to exercise his discretion to make an order prohibiting the father from making any application for an order under the CA 1989 in respect of the children without the leave of the court for a period of two years.
Conclusion
This case is another example of the intrinsic difficulties faced by litigants in person. The court should always accommodate and explain proceedings to them. The case of P v F demonstrates that the judge during the DRA on multiple occasions informed father of the limits on concluding proceedings. The father at times was confusing and conflicting in his position. However, there should be an unequivocal agreement to a Final Order being made at a DRA which was distinctly lacking in the case of P v F.
