Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
Mr Justice Trowell
Between:
W | Appellant |
- and - | |
W | Respondent |
Mr Milad Shojaei (instructed through direct professional access) for the Appellant
The Respondent appeared in person
Hearing dates: 28 November 2025
Judgment
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The judge has given leave for this anonymised version of the judgment to be published. Nobody may be identified by name or location. The anonymity of everyone other than the lawyers must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court. Counsel invites the parties to agree anonymisation of this judgment.
I have before me two applications:
The appellant-father’s application for permission to bring proceedings under section 8 of the Children Act in relation to his 14-year-old daughter, G, in circumstances where there is a section 91(14) order requiring him to be granted permission before bringing such proceedings. The section 91(14) order was made by consent in February 2024 when he withdrew the heavily contested section 8 application he was then pursuing. The current hearing arises following my allowing his appeal in October 2025 against the order of HHJ Wright refusing him permission.
The appellant-father’s application for permission to appeal a further order of HHJ Wright dated the 1 August 2025 (including permission to appeal out of time) in which she refused him permission to bring section 8 proceedings in relation to an elder child, M, who is now 17, and if permission is granted the appeal itself.
Mr Shojaei appears for the father as direct access counsel. The respondent-mother has appeared in person.
The background
I will set out the historical background summarily. I am here repeating for the most part what I set out in my judgment of the 28 October 2025.
The parties had three daughters. The eldest is now 19 years old. The middle one is now 17. The youngest is now 14.
The parties separated in 2021. The children remained living with the mother. In 2022 an application was made for a child arrangements order and a lives with order by the father in relation to the two younger children. The children became more resistant to seeing their father. Various professionals became involved: a family therapist, an independent social worker, and a psychologist. The children became represented in the proceedings by a Guardian.
Allegations were made against the father of coercive and controlling behaviour and allegations were made against the mother of alienation. There were no findings either way however because prior to the 3-day hearing, which had been listed, an agreement was reached between the parties.
The proceedings were resolved by an order of HHJ Wright on the 29 February 2024. What follows is my paraphrase of the order.
The father withdrew his application for a child arrangements order with the permission of the court.
The father undertook not to attend the children’s school without the invitation of the children, and not to attend the family home without agreement with the mother, and that undertaking was to last until the youngest child was 16.
There was an order that the children lived with the mother.
There were section 91(14) orders in respect of the children expiring on their 16th birthday. Applications for permission were to be listed before HHJ Wright.
There was a schedule in which it was recorded that:
The father confirmed that he wished to withdraw the proceedings because he had listened to the children’s wishes and feelings, that he wished to make clear that he dearly loved them, he hoped over time for the restoration of his relationship with them, at present he recognises the strain of the court process and believes the conclusion of these proceedings now is in their best interests.
The father had not engaged with hair strand testing.
There was no reason for the father not to attend events at the children’s school if they invited him to do so.
That it was agreed:
The father shall send one message a month to each child via an email address to be provided to him by the Guardian
If the children respond inviting further contact he can respond.
If the children message the father by different means he can respond.
On the 3 December 2024 the father asked for permission from the court to bring a section 8 application. HHJ Wright listed this to be heard remotely on the 28 January 2025. She refused permission and I have set that decision aside. I need go into it no further here, save to recall that I noted that in her judgment HHJ Wright makes reference to the application concerning two children. The paper application did refer to two children, G and M, but it was made clear by Ms Bazley KC (the appellant’s then counsel) in her position statement, and orally, that before the court was only an application in relation to the youngest child because M was already 16, and so there was no section 91(14) order permission required to bring an application for her.
On the 29 July 2025 the father made an application for section 8 orders in relation to M. On the 1 August 2025 HHJ Wright dismissed that application as an abuse of process on the basis that (1) there were no exceptional circumstances justifying this application and (2) he had been refused permission to make a similar application earlier this year. The latter point must be a reference to the January decision, notwithstanding that properly her decision on that occasion only related to G. The former point might be because M was 17 but in context is likely to be a further reference to the January 2025 decision, on the footing that there would need to be something exceptional to allow a fresh application and consideration.
The order of HHJ Wright was sent to the father by post. He relates that he did not receive it until he returned from holiday on the 26 August 2025. Having received it he acted promptly and filed an application to appeal on the 9 September 2025.
The Law
The test for the grant of permission to appeal is set out in rule 30.3 (7) of the Family Procedure Rules. Permission to appeal may be given only where:
The court considers that the appeal would have a real prospect of success; or
There is some other compelling reason why the appeal should be heard.
The test for allowing an appeal is set out in rule 30.12 (3) that the appeal court will allow an appeal where the decision of the lower court was:
Wrong; or
Unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
The appeal court has, by Rule 30.11 (1), all the powers of the lower court and so if I allow the appeal in relation to M I can consider the matter afresh.
The law on applications for permission has not been argued in front of me. I have been referred to Re P v N (s.91(14): Application for Permission to Apply: Appeal) [2019] EWHC 421 (Fam). That tells me, at paragraph 14, that Wall and Thorpe LLJ in Re S [2006] EWCA Civ 1190 declared that ‘the applicant has to demonstrate that there is a need for renewed judicial investigation on the basis that he has an arguable case’. This is an amalgam of two slightly different tests: ‘an arguable case with some chance of success’ and a need for ‘renewed judicial investigation’. The two tests are said to complement each other.
I have had some oral submissions from Mr Shojaei on how to deal with an application in relation to a 17-year-old. It is set out at section 9(6) of the Children Act that no order should have effect after a child is 16, save in exceptional circumstances. I have not however been pointed to any statutory provision in relation to applications in relation to children who are over 16 or any case law on the point. It must however follow from section 9(6) that there must be an arguable case that there are exceptional circumstances to allow an application for section 8 orders in relation to a child over 16 to proceed.
The appeal in M’s case
The mother does not consent to this appeal being granted but made no submissions on the issue.
It is obvious that this appeal should be allowed. The judge considered the matter on the wrong basis. There was no s. 91(14) order in place in relation to M and there had, properly considered, not been a recent determination of an application for permission to bring proceedings in relation to her. I shall allow permission to appeal, including permission to appeal out of time, and I shall allow the appeal.
There is then an issue as to how I should deal with the application for section 8 orders in relation to M. It would be open to me to simply remit that matter to the Swindon County Court for gatekeeping. That would necessarily involve some consideration as to how to deal with the application in circumstances where M is already 17 years old, including whether she should be served herself.
Neither party wants that. Both want the matter dealt with now by me. The mother wants it dismissed. The father wants me to make the orders he seeks on a summary basis. The delay they say is not in her interest. I explained during the hearing that if I considered the matter should progress I would likely need a mechanism to hear M on the application.
I have concluded that if I consider that there is no arguable case as to exceptionality warranting the application continuing rather than remit the matter to Swindon (or make provision for me to deal with the matter further) I should say so now and consider dismissing the father’s application at this stage. If I am considering dismissing the application it will be necessary for me to consider the matters set out in section 1 of the Children Act.
Fresh Orders
I need to consider then:
Whether I should give permission in relation to a fresh application for G, notwithstanding the 91(14) order;
Whether, notwithstanding she is now 17 years old, I should allow the father to proceed with his application in relation to M.
First I should set out what the father is seeking. He is not after direct contact. He wants:
Monthly welfare updates from the mother.
Confirmation that the email system set up is functional, and the possibility of communicating by a different platform, e.g. WhatsApp, Facebook or Instagram.
Ability to make independent financial provision for the girls by way of payment into an account not controlled by the mother.
Full recognition of his PR by the children’s schools.
Permission to send cards and modest gifts to the children.
A letter from the court to the children setting out certain specified matters.
The instruction of an ISW to engage with the children – though he does not want that today.
The mother says on these points that:
The girls do not want to give monthly updates to the father or for anyone else to do so on their behalf. And she does not want to engage with him directly herself.
She confirms that the emails are functional. The children could access them if they wanted to. They don’t want to access them. I note on this that Mr Shojaei does not seek to argue that they are not functional today. They were set up by the Guardian (or more accurately her boss) and though he complains they were set up 2 months after the hearing he accepts that the children could access those emails if they wanted to.
They do not want independent financial provision. There are ongoing financial remedy proceedings between the parties and the father’s attention should be on sorting them out. The financial remedies proceedings are an area of some dispute between the parties. It is accepted by the father that the mother has issued an application for notice to show cause why an agreement should not be made an order of the court. He says that there are some difficulties in relation to a trust. The mother makes allegations that the father has not met some school fees. The father says that by the agreement (albeit it has not been finally agreed) he has made a capital payment to enable the mother to meet those fees. I am in no position to do more than observe that there are issues between the parties in relation to money.
As set out in the order they do not want the father to attend the schools. It is a matter she says for the schools what the schools send to the father and she is content for him to raise with the respective school that he has parental responsibility.
The children have said they don’t want cards and gifts from the father.
I did not seek her response in relation to the request for a letter from the court setting out what has happened. I made clear to the father that I am in no position to send such a letter given my limited involvement in this case.
The children have no desire to engage with another (or the same) ISW. The children are fed up, she says, with telling experts that they do not want to see the father only to have the father try and foist someone else on them.
Second, I need to hold in mind that this is on any view a very sad dispute. For whatever reason the relationship between the father and his daughters had broken down and the parties have been engaged (if not locked) in litigation since 2022.
Third, I reflect that the disputes that lie behind both parties’ positions today are the disputes that would have informed the hearing in 2024. The father says the mother has alienated the children from him; the mother says the father is coercive and controlling and is still trying to force her and the children to act in accordance with his will. A cost of compromise is that there has not been a court determination of these cross-complaints. There are of course usually many counterbalancing advantages of compromise.
Fourth, I remind myself in relation to G that we are told in the order the father withdrew proceedings in 2024 and agreed to a section 91(14) order was agreed until she was 16:
because he had listened to the children’s wishes and feelings, that he wished to make clear that he dearly loved them, he hoped over time for the restoration of his relationship with them, at present he recognises the strain of the court process and believes the conclusion of these proceedings now is in their best interests.
I am aware that proceedings considered more generally do not appear to have gone away or calmed down. In addition to these proceedings, which have had applications in December 2024 and July 2025, there has been a specific issue application in relation to G schooling which was determined in October 2025 and the ongoing Financial Remedy proceedings referred to above. The children will have inevitably been aware of those proceedings. Further the father had been arrested for harassment of the mother shorty before the hearing in January 2025 before HHJ Wright. He was not charged. I do bear in mind that the rights and wrongs of what happened then are not something that I can consider. I remark on it, however, in relation to the tension in this case.
Section 91(14) application – G (Child)
The following is urged on me by Mr Shojaei in favour of allowing the application to proceed:
The 2024 order was a bad order. Communication by email does not allow the father to know that the email has been received or read; an email is not an enticing form of social contact. It would be better to replace this with a different indirect communication system.
It had been assumed that the mother would want to repair his relationship with the children. That has not happened. She had in fact harmed the relationship further.
Time is of the essence. If the court does not permit some shift in arrangements now the position of G will be fossilised into permanent rejection.
G has Article 8 rights to have a relationship with her father that are not being respected.
I should reflect on the modesty of what he is seeking.
It is urged on me by the mother that G is clear in her views. She wants to be able to get on with her GCSEs without being involved in further proceedings, and another round of experts coming to ask her views. She has access to the father’s emails and she has his phone number, if she wanted to respond she could. In relation to the particular points above she says:
The 2024 order was not a bad order. It deliberately provided for the father to communicate by a dedicated email address so that the girls could access it if they wished but could ignore it if they wished. Setting up an alternative would defeat what was intended.
This reflects the father’s desire to control her; to make her act in a certain way. She does not speak ill of the father. She is neutral in how she talks about him. The girls have their own strongly held views.
As to timing, the order was made with a time frame in mind. The section 91(14) order was to last till they were 16. It was acknowledged that it was better to leave it to the children to determine if there would be contact. The father should leave the order to work rather than pressing on the children further applications. It would be better now to leave things in the way that had been provided for by the order.
G should have a right not to engage with her father if she does not want to engage with him.
What the father is seeking is something which G would strongly oppose.
I remind myself of the test in relation to the application concerning G, namely, the applicant has to demonstrate that there is a need for renewed judicial investigation on the basis that he has an arguable case.
In the light of
What was expressly conceded in relation to the withdrawal of his case in February 2024 namely that the father recognised that the strain of the court proceedings harmed the children and they would benefit from the withdrawal of his proceedings, and the agreement that the section 91(14) orders were appropriate until the children were 16;
the many-faceted ongoing litigation which inevitably will have impacted on the children;
the fact that the children have had the agreed route to contact him through emails and have chosen not to contact him;
and that the arguments that have been advanced to me are at root the same arguments as were before HHJ Wright in 2024, namely on the father’s side that the mother was alienating the children and on the mother’s side that the father was coercive and controlling;
I conclude that the applicant has not demonstrated that there is a need for renewed judicial investigation, and that he does not have an arguable case. Further, I consider it helpful to think about the question from the position as to what is in G’s best interest. I conclude that the harm of allowing him to proceed with his application in relation to G and thereby involving her in more essentially repetitive litigation outweighs any benefit to her.
The M (child) application
In relation to M the issues are different:
The father is not limited in relation to bringing an application by virtue of a section 91(14) order.
However, she is 17. As set out above by s. 9(6) exceptional circumstances would be required to justify a continuing order. Further, if an order were to be made it would be of very limited duration. She will turn 18 on the 14 June 2026. That is less than 7 months away.
I am not prepared to make an order that there should be some form of contact (even indirect) in relation to a competent 17-year-old without hearing from her. I cannot see how practically the court could be in a position to make an order within 3 months. (Even if I were to retain it, there is no space in my diary till the end of March.) So the longest any order could last is some 4 months, and less if retained by me.
Mr Shojaei tells me that this case is exceptional because time is of the essence. The next few months are the only time which the father has left to ask the court to help him rebuild his relationship.
The Mother tells me that M is about to do her A levels – indeed they have already started - and should not suffer the disruption of having to deal with this application.
It cannot be exceptional when seeking an order for contact with a child over 16 that the order will have little time to run. That will inevitably be the case with any child over 16 because the order must cease at 18. There would need to be something more than can be pointed to here, where there has been a degenerating relationship since 2022, and an order in the light of those problems in 2024. Different considerations would apply if the issue related to some one-off exercise of parental responsibility, e.g. agreeing to a medical operation.
Given what I have said above I conclude that there is no arguable case that there are exceptional circumstances warranting this application continuing. I will however go on to consider what is in M’s best interests. I am not here going to repeat the matters set out in section 1(3) of the Children Act. I have them in mind. I do remind myself that the child’s welfare is my paramount consideration (section 1(1)), and any delay in determining an issue is likely to prejudice her welfare (section 1 (2)).
In circumstances where M is choosing not to read the father’s emails, where it is almost inevitable that she will need to be a respondent to this application, where she is doing her A’ levels, and where within 7 months of today any order will cease to have effect, I do not consider it is in her best interests to allow this application to progress, and I consider it in her best interest to decide that now.
I pause to reflect on the modesty, as Mr Shojaei puts it, of what the father is seeking. I can understand from the father’s perspective why he so describes it, but it is clear that it will be seen not as modest, but a further undermining of M’s own choices looked at from her side.
So, having allowed the appeal, I dismiss the application in relation to M.
Miscellaneous
The mother, I anticipate, wishes to make an application for some costs that she has incurred taking advice before this hearing. If she wishes to pursue that I will deal with that application on paper. I do not encourage the application, but I am not ruling on it here.
I will ask Mr Shojaei to draft an order reflecting what I have decided in this judgment.
Mr Justice Trowell
5 December 2025