J (A Child)

This is another appeal against a prohibitory order in proceedings under the Children Act 1989 (“the Act”) made under section 91(14) of it. The leading authority on the exercise of the jurisdiction to make such orders is now Re S (Permission to Seek Relief) [2007] 1 FLR 482. In paragraph 6 of its judgment, given by Wall LJ, the court said:

“A third application for permission which we had hoped to list at the same time, raised the question of a section 91(14) order expressed to last until the child concerned obtained his or her majority. Unfortunately, the applicant for permission in that case did not pursue it in time for it to be listed with the current applications.”

Our case today is the “third application” to which this court there referred. On 18 August 2006, being by coincidence the date when the judgment in Re S was handed down, Wall LJ and I gave permission for the present appeal to proceed.

The appeal is brought by a mother against an order made under section 91(14) by Munby J sitting in the High Court, Family Division, on 24 June 2005. During the preceding four days he had been hearing applications referable to a boy, J, who was born on 26 November 1992 and who was thus aged 12 and is now aged 14. Tragically J has a severe autistic disorder and a profound degree of special educational needs; and, for example, his power of speech is substantially impaired. Since December 2002 he has been living with his father in London under a care order granted to the Royal Borough of Kensington and Chelsea (“the local authority”). In the proceedings before Munby J the mother was the applicant; and the respondents were the local authority, which were represented by counsel, the father, who was represented by counsel, and J himself, by his guardian, who was represented by a solicitor.

The mother has the considerable misfortune to suffer severe agoraphobia as a result of which she cannot attend court in person. Apart from making a few short visits to shops in its immediate vicinity, she is confined to her home in Earls Court. In June 2005 Munby J conducted the entire hearing by telephone link to the mother and recorded in his judgment that, apart from a couple of occasions when the mother indicated that she was having difficulty in hearing what was said, she had fully participated in the hearing. Towards the end of his judgment, which ran for 71 paragraphs, the judge addressed the local authority’s application for an order against the mother under section 91(14) and explained why he proposed to grant it. The order which he made thereunder was to prohibit the mother from making any further application in respect of J under the Act until his 18^th birthday, namely 26 November 2010, without the leave of a High Court Judge of the Family Division and, indeed, of himself if available.

Counsel tell us that their researches have not revealed any reported case in which an order under section 91(14) has been made in relation to a child in care; but, on analysis, not much seems to me to turn on that apparently unique feature. Clearly the judge was of the view that the limited prohibitions on making further applications for discharge of a care order or for an order for contact with a child in care following their dismissal, as set by section 91(15) and (17) of the Act (i.e. not for six months following dismissal, save with leave), represented a wholly inadequate level of protection.

In circumstances which I will explain, this appeal turns only upon the narrow if important point namely, it having been accepted by this court that it was open to the judge in the exceptional circumstances to make an order against the mother under section 91(14), whether it was a proper exercise of his discretion for him to provide that it should endure for what was then more than five years, namely until J’s 18^th birthday.

As before the judge, so before us: the mother represents herself. She has participated in today’s hearing of this appeal by telephone link and is listening to this judgment as I deliver it. She has made two long written presentations of her case to this court by e-mail, namely on 17 August 2006 and 13 July 2007. In that regard I should record that last Friday, 13 July, in order to protect the mother from being bombarded by late skeletons filed by other parties, I directed that no further skeleton arguments should be filed or served. It was not a direction which was intended to preclude the filing and service of a skeleton argument by the mother herself; and I am glad that she decided to disobey the ostensible terms of it. The argument which she filed later on 13 July has been extremely helpful; and today she has addressed us at fair length and, if I may so, with great articulacy and civility. Present in court to oppose the appeal have been leading counsel for the local authority and counsel for J himself by his guardian. The father, appearing in this court in person, has added his opposition to the appeal. When it gave permission to the mother to bring this appeal, this court invited CAFCASS Legal to appear as advocate to the court, just as it had appeared in Re S. Very conveniently, CAFCASS Legal instructed Mr Hepher to appear on this appeal, just as he had appeared on its behalf in Re S; and we are indebted to him for the helpful and consistently neutral way in which he has offered an analysis of the issues thrown up by the length of the judge’s order.

As I will show, the context of a number of the statements of principle in Re S is the making in private law proceedings of orders under section 91(14) against parents, usually fathers, who, notwithstanding protracted efforts on their part and often also on the part of the court, have not been afforded any contact with their children. Happily the present situation is different. Under arrangements made by the local authority pursuant to their duty under section 34(1) of the Act to allow a child in care reasonable contact with his parents, J goes to visit the mother about every fortnight for about five hours on an unsupervised basis; and there is much evidence to suggest that the relationship between them is close and valuable to both of them. The mother, however, has a profound sense of grievance that J is not residing with her but, instead, resides with the father, whom she regards as wholly unfit to care for him. And, although today she has stressed to us that she accepts that J will never return to her care, there have been, according to the evidence, many other occasions upon which she has indicated that her aspiration, even if to be achieved only after a proposed appeal to the House of Lords and/or an approach to the European Court of Human Rights in Strasbourg, is to obtain residence of J. Indeed, early on in the hearing this morning, she told us in terms:

“I am going to carry on until the truth is out.”

The mother feels bitterly betrayed by the legal system in England; and she has no respect whatever for many of the professionals, including in particular the officers of the local authority, J’s guardian, his solicitor and her own previous lawyers, who have played a role in the proceedings which, to date, have brought her nil satisfaction. In a wise paragraph of his judgment Munby J indicated that the court should not be carried away by the abusive and unpleasant language sometimes deployed by the mother in relation to these professionals. Although it is proper for me to record that, in an e-mail to this court in October 2006, she accused J’s guardian and solicitor of having -- for example -- perpetrated “emotional rape” upon her, and although the court cannot on any view condone language of that sort, it is, at the risk perhaps of my being unduly indulgent to the mother, only a sign of the desperation and frustration which she feels.

The parents were married in February 1991 and, although there is some reference in the papers to separation on the day of marriage itself, they obviously got together thereafter, if only to achieve the conception of J. But in January 1993, within six weeks of J’s birth, litigation began between them in respect of J; for the mother then obtained a prohibited steps order against the father’s removal of J from her. In the following six years there were at least ten hearings in private law proceedings between them referable to residence, contact, prohibited steps and to alleged breaches of such orders. Ultimately, in October 1999, residence of J was definitively awarded to the mother; and, so she has told us today, an order was made against the father under section 91(14) of the Act so as to prohibit applications on his part thereunder referable to J for three years.

In the event J was to remain living with the mother only for about 18 months. During that time there were on any view positive features of the mother’s care for J, in particular in relation to her struggle to see that the local authority met their obligation to attend to his special educational needs. But, notwithstanding the positives, the mother was, so the courts have found, finding it increasingly difficult to care for him. Her own physical and mental health was deteriorating; she and J had a substantial need for local authority support and yet her increasing hostility to the local authority interfered with the support which they needed to provide; and her levels of volatility and distress made her home an inappropriate home for J, in particular in the light of his special difficulties.

On 10 June 2001 there was a crisis as a result of which, at her invitation, J left the mother’s home and was taken by the local authority into interim foster care. In the care proceedings then launched by the local authority there was a four day hearing before District Judge Moorhouse in July 2001 as to whether J should remain in interim care -- the judge’s conclusion was that he should do so -- and an 11 day hearing in February 2002 at the end of which the same judge, having heard 20 witnesses and the submissions of Mr Murdoch QC, as he then was, on behalf of the mother, made a full care order. At that hearing a possibility emerged that the local authority would decide to place J with the father; and ultimately, in December 2002, they did so. Besides making the care order the district judge had left the arrangements for contact with the mother in the discretion of the local authority; and the pattern of fortnightly visiting contact seems to have begun then if not before.

Perhaps understandably from her own perspective, the mother was dissatisfied in particular with the district judge’s refusal to direct that she should have staying contact with J. Immediately after the decision of the district judge the mother applied for a specific order for contact under section 34(3) of the Act but in November 2002 her application was refused. In November 2003 the mother again applied for an order for staying contact; and that was considered at a hearing in April 2004 before District Judge Black, at which the mother was represented by junior counsel. Counsel for the mother then assured the district judge that she had no aspiration to challenge the care order; later, however, the mother was to tell Munby J that that representation had been strategic in order to seek to persuade the district judge that an increase in contact would not be a stepping-stone to a resumption of care. In the event, however, in her judgment dated 28 April 2004 the district judge declined to make a specific order for contact and left issues of contact as before, namely in the discretion of the local authority. By her order the district judge refused the guardian’s application for an order against the mother under section 91(14) of the Act. Nevertheless in judgment she indicated to the mother that, before the court would be likely to favour an enlargement of contact, in particular to staying contact, it would probably wish to see that the mother had, firstly, engaged in therapy, with a view in particular to developing a greater emotional tolerance of the family arrangements with which she was confronted, had, secondly, sought to develop a better relationship with the local authority and had, thirdly, attempted to address the day to day problems of running a household with a greater degree of stability.

On 23 November 2004 the mother applied for permission to appeal out of time against the care order which had been in 26 February 2002. It was that application, together with applications by the mother for the discharge of the care order and again, whether under section 8 or section 34 of the Act, for an order for increased contact with J, which came before Munby J on 20 June 2005 and which led to the orders made by him on 24 June 2005. The judge refused the mother permission to appeal against the care order out of time; dismissed her application for discharge of the care order; dismissed her renewed application for a specific order for contact with J; and made the order under appeal.

In her Notice of Appeal to this court against the orders of Munby J the focus of the mother’s challenge was the judge’s refusal to allow her to challenge the making of the care order and/or to discharge it and his refusal to make a defined order for contact. On 8 February 2006, by telephone, Wall LJ heard the mother’s application for permission to appeal against these orders; and, by a reserved judgment dated 9 March 2006, he refused to grant the mother permission to appeal save in relation to the point which he had of his own motion identified, namely that relating to the length of the order under section 91(14). In that sole regard he adjourned the application for permission; and, following its grant on 18 August 2006, it comes before us today.

Munby J gave reasons for his order under section 91(14) which are typically clear and comprehensive. He said as follows:

“64.

The remaining matter is the Local Authority’s application for an order under section 91(14) of the Act. Any such order is of course a drastic matter. Typically such an order is made against a litigant in circumstances where that litigant has already made a significant number of groundless or unsuccessful applications to the court. [Counsel for the local authority] very fairly and frankly accepted that this was not such a case. On the other hand, the jurisdiction is not confined only to cases which have that characteristic feature. In the present case, [counsel] says there is a pressing need for such an order. The father, as the carer for [J], needs to be protected from future applications unless they have sufficient seeming merit to persuade a judge to give permission. She submits that despite the absence in this particular case of a significant track record of previous failed applications, there is real reason to fear that unless restrained in that way, the mother will make further applications. She founds herself not merely on the evidence of [the allocated social worker] but more particularly, by the end of the hearing, upon the numerous occasions during the hearing when mother said words to the effect that she would not accept the care order, she never would and she would do everything within her power, including going to Europe, to try and have it set aside.

65.

In my judgment, this is a case in which it is not merely appropriate but indeed necessary to make such an order. The fact is that the mother knows what has to be done if she is to move forward. The fact is, as District Judge Black spelt out very clearly in April 2004 and in terms with which I agree, that mother cannot realistically hope to make a successful application unless she can demonstrate that she has moved forward. It seems to me that it is very much in the interests of everybody, and not least in the interests of the mother herself, that any future litigation should be subject to the regulation of the court. It may well be that the mother is not herself responsible for the whole of this history, but it is an unfortunate fact that the private law proceedings went on from 1993 until 1999 and that there has been litigation in the public law sphere since June 2001. Everyone, it seems to me, needs a break from the litigation. It will assist the mother because if she is made to go through the permission filter imposed by a section 91(14) order she will have the advantage of an early indication from a judge as to whether she does or does not have a realistic basis for making an application to the court. If she does, then no doubt permission will be granted and she will be able to make her application. If she does not, then permission will not be granted and that, I cannot help thinking, is something as much in her interests as in the interests of everybody else.

66.

Mother disavowed in front of me any intention of making further applications. I do not doubt the honesty with which she uttered those words as she spoke them. But I am afraid – and the episode… in April 2004 is an example of this – that this is a case in which, as she in fact to all intents and purposes conceded in front of me, the mother has in the past said things in court, only very shortly afterwards to repudiate them on the basis that they were said in order to achieve her wider objectives. In my judgment, as I have said, a section 91(14) order is not merely appropriate, it is necessary.

67.

The question then arises as to whether or not that order should be time-limited. Very frequently, and indeed most of the time, the court’s preferred view is to make such an order time-limited, often for a period of either one year or two years. [Counsel for the local authority] said that but for [J’s] disability and the consequent extension of the period in which he will be subject to the Local Authority’s care and help, she would have been minded to seek an order expiring on his 16^th birthday. But she made, as it seemed to me, the compelling point that in this particular case, for reasons which are obvious, [J] reaching the age of 16 will not have the same significance as it would for many other children, and in those circumstances she submitted that I should make the order to expire on his 18^th birthday.

68.

That is, I appreciate, a drastic form of order, not least bearing in mind that at present [J] is only some 12 and a half years old. But, in my judgment, it is appropriate, indeed necessary, in this particular case, in particular, as it seems to me, for this reason. It may be - I very much hope it is - that the mother will change her view of these matters, but as of the moment mother's stated position, stated more than once by mother herself to me during the course of this hearing, is that she will never change her mind and that she will stop at nothing to try and achieve her objective, which is the setting aside of the care orders and [J] returning to her care. I think I am entitled to take those assertions at face value and to attach rather more weight to them than to mother's other assertion that she does not intend to make any further applications to the court. The difficulty lf I make a time-limited order is that it may simply encourage mother to make an application the moment the time limit expires. She may understand the order as containing by implication a belief on my part that once the time limit has expired an application will be appropriate in circumstances where I fear that it may not be appropriate.

69.

There is also the further difficulty presented by the fact that, given mother’s current stance, it is quite impossible to predict when matters might have changed to such an extent as to justify the making of an order. If this was a mother who had embarked upon therapy with a therapist who was prepared to predict that in, say, 12 months’ time things might have changed significantly, then it might very well be a case for making a time-limited order – in that particular example perhaps an order for 12 months. This, for reasons which will be apparent, is not such a case. It seems to me that I should make the order and that in all the circumstances the order I make should be expressed as expiring on [J’s] 18^th birthday.”

Although the mother suggests to us today that section 91(14) of the Act should be repealed, she does not suggest -- nor does Mr Hepher -- that, while the subsection remains, the judge did not have jurisdiction to provide that an order under it should extend until the 18^th birthday of the child. As was said by this court in Re S, at [84], “It is clear … that a section 91(14) order can properly be made without limit of time …”. Indeed in Re P (A Minor) (Residence Order: Child’s Welfare) [2000] Fam 15 this court dismissed an appeal against such an order. An order under the subsection without limit of time would cease to have effect when the child reached the age of 18: see section 93(13) of the Act. Thus an order, as made by the judge, expressed to expire on the child’s 18^th birthday has an effect identical to an order without limit of time.

Then, however, in Re S this court went on to say, at [85]:

“In our judgment, however, orders made without limit of time and orders expressed to last until a child is 16 should be the exception rather than the rule, and where they are made, the reasons for making them should be fully and carefully set out.”

Nowadays it almost goes without saying that all orders under section 91(14) are exceptional; and such was stressed in Re P at 37G, per Butler-Sloss LJ. So this court’s recent comment in Re S that orders made without limit of time or expressed to last until a child becomes 16 should be the “exception rather than the rule” means only that, along the spectrum of exceptional cases which justify an order under section 91(14), orders of such duration should be made only in respect of cases at the egregious end, which merit the strongest degree of forensic protection for the child from further ill-founded conflict.

Whence does the reference in Re S to the age of 16, rather than the age of 18, arise? This court made clear, at [84], that its discussion of possible termination at age 16 arose in particular from section 9(6), and no doubt also from section 9(7), of the Act. These subsections provide that orders under section 8 should not be expressed to continue to have effect after the child’s 16^th birthday, and should not be made after the child’s 16^th birthday, unless the circumstances of the case are exceptional. Even though in the present case J is subject to a care order and so the only applications which the mother could make would be, as before, for discharge of the care order under section 39 of the Act or for a defined order for contact with him under section 34(3) of it, it is no doubt helpful for a court which is considering the length of a proposed order under section 91(14) to have in mind that the Act does not provide for private law orders to apply to children above the age of 16 save exceptionally. Nevertheless in the present case Munby J specifically considered the possibility of expiry of the order under section 91(14) on J’s 16^th birthday and rejected it on the basis that, in the light of his special situation, the arrival of his 16^th birthday would not carry the significance that it would carry for many other children. In my view that conclusion was valid; indeed, had the courts in J’s case still been in the realms of making private law orders referable to his residence and contact, I have no doubt that it would classify the circumstances as exceptional in order to justify their subsistence until his 18^th, rather than 16^th, birthday.

In Re S this court went on to state as follows:

“[89] Thus, in each case in which s 91(14) of the Act is invoked, it behoves the court to consider carefully what mischief the section is designed to address, and in particular whether or not it is going to be possible, at the end of a defined period, to re-investigate the question, and to attempt the restoration of the relationship between absent parent and child.

[90] Section 91(14) of the Act has been described as both draconian and flexible. Both descriptions are apt. Its use, however, has to be carefully controlled by the court as part of its over-arching strategy, which is to preserve and foster relationships wherever possible. An order which is indeterminate, or which is expressed to last until the sixteenth birthday of the relevant child is, in effect, an acknowledgment by the court that nothing more can be done. As we have already made clear, cases in which the court reaches the end of the road do exist, and there are cases in which it is essential for the welfare of the children and the physical health and sanity of the resident parent that an indefinite halt is called to litigation. But if the court has indeed reached that stage, it needs to spell out its reasons clearly, so that the parents – and in particular the parent who is the subject of the s 91(14) order knows precisely where he or she stands, and precisely what issues he or she had to address if an application for permission to apply is going to be possible.”

Inevitably we have received argument in relation to the suggestion that an indeterminate order, with which I have equated the present order, is, in effect, “an acknowledgement by the court that nothing more can be done”. In my view it is very important not to take that statement out of context; and part of the context is the last sentence of [90], by which this court stressed that the reasoning behind such an order should be explained with a clarity which enables the subject of it to understand what issues should be addressed before an application for permission is likely to be granted. In the present case, by way of reiteration of the three matters upon which in April 2004 District Judge Black had invited the mother to concentrate before aspiring to secure an enlargement of contact, Munby J, without fettering the future discretion of the court, clearly identified the matters upon which a successful application for permission in relation to enlargement of contact would be likely to depend.

In his evenly balanced presentation Mr Hepher seeks to suggest that there might have been arguably greater justification for the judge’s lengthy prohibition upon renewed applications by the mother for discharge of the care order without permission and, by contrast, arguably lesser justification for a lengthy prohibition upon a yet further application for contact under section 34(3) of the Act. In this regard Mr Hepher has reminded us of the statement of this court in Re S, at [86], that in most cases the function of the court is not “to give the appearance that it is permanently shutting the door of the court in the litigant’s face.” Mr Hepher gently raises for our consideration whether the judge’s prohibition would give the appearance to the mother that the court was “shutting the door of the court” against staying contact between her and J. Of course, properly explained and understood, there is no question that any order under section 91(14) permanently shuts any court door in a litigant’s face; for the court is there, ready -- and, subject to the boundaries of its discretion, obliged -- to open its door to any further application which has prima facie merit. In fact, however, by an intriguing adoption of the same metaphor in his judgment under appeal, delivered over a year before the judgment of this court in Re S, Munby J himself said, in relation to his decision to leave the quantum of the mother’s contact with J in the discretion of the local authority, as follows:

“That does not of itself shut the door to a future change. The Local Authority assures me, and for my part I accept their assurance, that the question of contact is kept, and conscientiously kept, under regular review. The reality, and I spell it out again so that the mother can be left in no doubt, is that contact is not going to move forward, the Local Authority is not going to agree that contact should move forward, no judge is going to agree that contact should move forward in the way the mother would seek, unless the mother can show at the very least some significant move forward in relation to the three matters identified by the Local Authority some 18 months ago – crucial amongst those of course being the therapy or counselling to which I have already made reference.”

In fact, with respect to Mr Hepher, my view is that a restriction which disabled the mother from applying again for a discharge of the care order without permission but not from applying again for an order for increased contact would entirely fail to serve the judge’s purpose of saving J from the extra stress occasioned, both directly and indirectly through the father, by yet further acrimonious proceedings devoid of merit. As we have heard in court today, my Lord has been far from entirely successful in politely attempting to help the mother to keep to the narrow point before us and not to take us back to her grievances in relation for example to events in 2001 and to the hearing in February 2002 nor, conversely, to bring us forward to her complaints about the local authority’s current treatment of her. It would be asking far too much of this mother, intelligent though she is, to expect that, if allowed to issue any sort of fresh application without permission, she could confine the material presented to the court to what a judge or lawyer would consider to be relevant to it. Nor, more importantly, do I accept that, in the light of the indications now given by two courts as to the three areas which, if addressed, might enable the court to direct an increase in contact, there would be any logical reason for not including a further application in respect of contact in the overall brake upon further forensic activity without permission, which no doubt would be likely to be granted or refused by reference to the existence or otherwise of some evidence from the mother in relation to one or more of those areas.

In her skeleton arguments the mother correctly submits that section 91(14) should not be used as a tool with which to browbeat mothers. Inevitably she looks at it from her own perspective, in my view a distorted one. Like Mr Hepher, she also helpfully reminds us of the extensive, perhaps surprisingly extensive, jurisprudence on the principles which inform exercise of the power under section 91(14), as well as of the many other matters of grievance about her present circumstances which so oppress her and in respect of which, on a human level, I have great sympathy with her.

In the end, so I consider, we have to stand back and to remind ourselves that, in favouring a prohibition upon applications without permission for five and a half years, namely up until the date when the whole Act ceases to be operative in relation to J, the judge, as he recognised, was making an extremely unusual order, which, if it is to survive an appeal to this court, he was required to justify cogently. In my view his justification has a cogency which makes his decision impregnable in this court. In the light of the history of forensic struggle over J from within weeks of his birth on and off for the fourteen years to date, the first half of the period in private law proceedings and the second half in public law proceedings, there was justification for the judge’s view that, in J’s interests, a lengthy moratorium on all proceedings save those with prima facie reasonable foundation should be imposed. When, to that, the judge added his recital of the mother’s vows to him never to accept the status quo achieved by the care order made in February 2002 and by the subsequent placement by the local authority of J in the father’s care, being vows which in effect she has at times reiterated in the proceedings in this court, the grounds upon which the judge favoured the subsistence of the order until J’s majority became entirely solid.

I would dismiss the appeal.