AM (aged 7 years), Re

The child with which this court is concerned is AM, born in July 2018 and therefore now 7 years of age.

This is the appeal by his Father. The Appeal is against parts of the order made by District Judge Lynds on the 6^th June 2025 at a First Hearing Dispute Resolution Appointment. At this Appeal, Father was represented by Counsel, Ms Ciborowska. She did not represent Father at the hearing which concerns this appeal. At that hearing, he was a Litigant in Person.

The Respondent is AM’s Mother. She has attended remotely at the direction given by HH Judge Harvey. She was represented by Counsel, Mr Blount. He did not represent Mother at the previous hearing, instead a Ms Hayfield of Counsel represented Mother. In relation to the appeal as to the Interim Care Order, Mother’s case was that she was “neutral”. She resisted the appeal in respect to the Prohibited Steps Order.

At the conclusion of the Appeal I stated that the appeal would be allowed in relation to the Interim Care Order and the Prohibited Steps Order and its ancillary Power of Arrest; that the hearing before DJ Lynds on the 15^th August next is vacated and the matter transferred to the Designated Family Judge, in the first instance, for further directions. I stated that I would provide my reasons in writing and these are my reasons.

The order of the District Judge is at P24 in the Appeal bundle. He directed the commissioning of a S.37 Children Act 1989 report by the Local authority (paragraph 8 at P26). He made an Interim care Order (paragraph 6, P25) and, in addition, he directed a Prohibited Steps Order under S.8 of the Children Act 1988 which banned Father from taking AM abroad (paragraphs 3 & 4, P25). He attached a Penal Notice to that order (P25).

The Notice of Appeal (P3) is dated 20^th June 2025. Permission to Appeal was granted by HH Judge Harvey on the 28^th July 2025 (P22). The matter was listed before me on the 11^th August 2025 at the direction of the Designated Family Judge, HH Judge Melissa Barlow; I think in part because of the urgency in getting the Appeal heard (as can be seen from the chronology: there had been significant delay).

The hearing before District Judge Lynds was in respect to a private law matter in which Mother was seeking to spend time with her son, AM, who was living with Father, pursuant to the Order of HH Judge Jones, made on the 22^nd March 2023 (see P90 of the Appeal Bundle). Essentially, her complaint was that she was being frustrated from achieving time with AM by Father.

The hearing was attended by a representative of CAFCASS, Ms Puttock. Before the court there was a letter from CAFCASS (see P73) which had been prepared by Ms Ana Baciu and signed off by Helen Morrison. It does not appear from the face of the CAFCASS letter to the court that this was, strictly, a “Safeguarding Letter” – it begins, “The Court sent Cafcass the application in the above case, listed for the first hearing as above, the purpose of this letter is to inform the Court about Cafcass’ work to date.” However, the letter clearly addresses safeguarding issues.

Plainly, as we can see from the transcript of the hearing, at P48 a) to c), neither party had seen that letter until just before the hearing started. Father was a Litigant in Person and probably had little understanding of what it all meant.

Mother had served a Position Statement dated 5^th June 2025 (not in the bundle but attached to Mother’s Skeleton Argument in the Appeal). We can see from its paragraph 30 that she was intending to invite the court to make a Prohibited Steps Order without having made a prior application:

“Subject to the father’s position at this hearing and any orders made in relation to interim contact arrangements, the court will be invited to consider making a Prohibited Steps Order to ensure the father does not leave the jurisdiction with the child, to include for an extended period without informing the mother, as has happened previously.”

On the face of that ‘request’ there was no application that a Power of Arrest be attached.

As can be seen from the history provided in the CAFCASS letter the child, AM, has a considerable history of involvement with various Local Authorities over the years, which contains information of a concerning nature. I do not need to reiterate it here. However, it appears that by 2022 Father was found to have injured Mother in September 2017; hit her in the face in January 2019; and had exerted a “power imbalance”. AM had been in Foster Care in April 2022 in relation to neglectful care by Mother. The letter states that Father has “two impending prosecutions” which are described thus,

“[Father] is subject to bail conditions prevent him from attending a third party address.

Impending Prosecution for Common Assault x 2 dated 22/02/25 – Male has on the hours of dark pushed a female out of the door wand has then punched her in the back of the neck. Next appearing on 23/05/2025.”

The court was also made aware of the previous proceedings concerning AM brought by the London Borough of Harrow and determined on the 22^nd March 2023 before HH Judge Jones when AM was placed under the supervision of the Hampshire County Council for a one-year period (expiring on 22^nd March 2024) and, concurrently, a Child Arrangement Order was made which provided that AM should live with his Father and by a recital in the court order, but not within the body of the orders made by the court, that mother should have supervised time with AM.

During the hearing, the Judge invited comment from Father about the “impending prosecutions” (see P50 H – B) referred to in the CAFCASS letter and Father informed the Judge,

“Sir, I don’t really know what is an impending prosecution. The police were doing the investigation; so, it was at my workplace when an incident happened and my mobile phone was kicked so the people who actually abused me and I was defending myself, kicked my phone and damage it and they actually rang the police – so when the police came, they were by the road, two of them and the police came and took me for in, for interview.”

There was a further conversation between the District Judge and Father but that did not alter the thrust of Father’s response – that this was an incident at work of which he was not the perpetrator. But the representative from CAFCASS, Ms Puttock intervened to say that clarification was needed about what is happening with that matter, and that he had not yet been contacted further by the police. Miss Hayfield then correctly identified that it was necessary to establish whether there was still an “investigation” or a “NFA” (No Further Action). Apart from the description used by CAFCASS, there is no evidence that a prosecution is pending, in the sense that Father has been charged, or indicted, for any offence, but that rather he is subject either to further investigation, or that the Police have decided not to proceed with a prosecution (NFA).

What is clear is that if Father’s explanation was to be accepted, then the incident had nothing to do with his care of AM, and there was no suggestion that AM was in anyway involved. There was, thus, a dispute of fact about the nature of the “impending prosecution” and its potential impact on the proceedings.

The District Judge then referred back to the CAFCASS letter and suggested that there needed to be disclosure in relation to allegations raised by Father’s ex-partner. The Letter states that there was a referral on 08/10/2014 (sic) which was closed to Hampshire Social Services on 03/12/2024 (so presumably the referral must relate to 2024, not 2014). That concerned a previous partner who had left Father and gone to a refuge, but there were no details as to ‘why’ she had left him. Similarly, a call was received in February 2025 but again, without any detail of alleged abuse. The letter also disclosed that a Social Worker had spoken to CAFCASS about AM being a Child in Need and a S.47 enquiry and went on to say that it was stepped down to CIN in April 2025. Mother had not raised any allegation against Father as to his care of AM at the hearing.

CAFCASS reported that “[Father] stated there are no issues between him and his current partner in respect of domestic abuse.”

I cannot find, in the letter, that there is any evidence of a direct link between the “impending prosecutions” and “domestic abuse” or that there are reports of domestic abuse, or when that abuse is alleged to have occurred.

A transcript of the hearing has been produced and is in the bundle at P46. There is no apparent “judgment” contained within that transcript. The Respondent Mother has not been able to adduce one. It would seem that there is no judgment setting out the reasons why the District Judge made the orders now the subject of this appeal. Apart from the transcript, only the Order and its recitals provide any clue.

FPR 30.12(3) provides that an appeal may be allowed where the decision was wrong or unjust for procedural irregularity.

The court may conclude a decision is wrong or procedurally unjust where;

In Re F (Children) [2016] EWCA Civ 546 Munby P summarised an approach to appeals,

“Like any judgment, the judgment of the Deputy Judge has to be read as a whole, and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law. To adopt the striking metaphor ofMostyn J in SP v EB and KP [2014] EWHC 3964 (Fam), [2016] 1 FLR 228 , para 29, there is no need for the judge to "incant mechanically" passages from the authorities, the evidence or the submissions, as if he were "a pilot going through the pre-flight checklist."

The task of this court is to decide the appeal applying the principles set out in the classic speech of Lord Hoffmann inPiglowska v Piglowski [1999] 1 WLR 1360. The classic passage to recite is,

the court gives a direction under section 37(1),

with whom the child is to live, and

when the child is to live with any person.

in a case which falls within subsection (1)(b) and in which—

the court has given a direction under section 37(4), but

A court may only make a care order or supervision order if it is satisfied—

that the harm, or likelihood of harm, is attributable to—

the child’s being beyond parental control.

apply for a care order or for a supervision order with respect to the child;

provide services or assistance for the child or his family; or

take any other action with respect to the child.

their reasons for so deciding;

By his Notice of Appeal the Father seeks to appeal the making of the Interim Care Order and the S.37 report. The body of the Notice does not include an appeal against the Prohibited Steps Order or the Power of Arrest. However, this lacuna is stopped in the Grounds of Appeal and the Permission to Appeal order (P22) does not seek to restrict the Appeal in any way. Mother took no point about this at the hearing.

It is not disputed by the Appellant that the District Judge had the power to make a direction commissioning a S.37 report. The argument is that there was an insufficient basis for doing so. At the hearing of the Appeal Counsel for Father conceded the appeal against the making of a S.37 report.

In relation to the Interim Care Order, again it is not disputed that he had the power to make such an order without there being an application by the relevant Local Authority before him, once he had directed the S.37 report, pursuant to S.38(1)(b).

The relevant parts of his order were as follows:

“In the interim the child [AM}, (d.o.b. [blank] July 2018), is placed in the care of the Local Authority, namely Hampshire Children's Social Care, until the next hearing or further order of the court. The child shall remain at home.”

The passage underlined was subsequently amended under the slip rule to read “Hampshire County Council”.

“3.

The father, [blank] must not remove the child, AM, (d.o.b. [blank] July 2018) from the United Kingdome, nor instruct or encourage any other person to do so . For the avoidance of doubt, the child shall not travel to [blank].”

“4. The Prohibited Steps Order shall remain in place until further order.”

“5.

A penal notice shall attach to paragraph 3 of this order.”

In respect to the S.37 report it provided:

“8.

It appears to the Court that it may be appropriate for a care or supervision order to be made with respect to the child because of the information available to the Court from the Cafcass safeguarding enquiries completed within these proceedings …… “

The Appellant by his Grounds of Appeal and Skeleton Argument contends that in order to be able to make the Interim Care Order, the District Judge still had to be satisfied as to the “Threshold” test set out at S.38(2) of the Children act 1989. That meant the District Judge had to be satisfied that he had “reasonable grounds” for believing that AM is then “suffering, or is likely to suffer, significant harm”; and that it was attributable to the care provided by Father. The Appellant contends that such material as was before the District Judge could not have satisfied that test.

Yet further, it is contended that since there is no Judgment, it is impossible to say on what evidential basis he decided he was able to make an Interim Care Order. There are 3 passages in the Recitals to the Order:

“4.

It is recorded that the Court is very concerned about AM’s wellbeing given the concerns raised by Cafcass in the court of their safeguarding enquiries and as detailed in the safeguarding letter dated 3 June 2025 . The Court therefore considered it necessary to Hampshire CSC to complete a section 37 report.”

“6.

The Court took the view that it was necessary to make in [sic] interim care order, pursuant to section 38 of the Children Act 1989, in respect of the child, granting Hampshire CSC parental responsibility and the Court explained this to the parties at court.

“9.

The court made no orders in relation to the arrangements for the child to spend time with the Mother at this hearing but invited Hampshire CSC to provide their views on interim arrangements in accordance with the Cafcass advice to the Court at this hearing.”

It is also contended that his failure to provide a Judgment is a procedural irregularity.

Furthermore, the Appellant contends that given that the District Judge was making the Interim Care Order on the basis of his direction for a S.37 report, and that he made no direction under S.37(4) he did not have the power to direct that the Interim Care Order was to last “until the next hearing or further order of the Court. The child shall remain at home.” But that, instead, it was fixed by law for 8 weeks.

By Ground 4 it is contended that the making of a direction S.37 report was not proportionate and that he should have awaited the further investigations suggested by CAFCASS.

By Ground 5 it is contended that the Judge should not have made a Prohibited Steps Order given that it had been raised in the Mother’s Position Statement for the first time and that therefore, Father had had very little time to comprehend and respond to it. It is argued that the evidence showed that Father had the right to take his son to [blank], or Europe because of the Order of HH Judge Jones, and had done so and returned without issue before. It is contended that it appears he made the order on the basis that he did not want to interrupt the process of the S.37 report.

Finally, that it was disproportionate and unnecessary to attach a power of arrest. No application had been made of such a power to be added and there was no basis to conclude that such a draconian step was required.

The cases of Flannery v Halifax Estate Agencies Ltd [2000] 1WLR 377 and English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 highlight why a judgment is required and must set out the judge’s reasons for his decision and that they must be adequate.

The only reasoning which can be elicited here comes from the Recitals to the order and the exchanges in the Transcript. What neither do, in my judgment, is explain how the Judge decided that making an Interim Care Order was both necessary and proportionate in the circumstances then before him.

He could not then determine reasonably that Father had repeated domestic abuse after the Order of HH Judge Jones; he knew that Father disputed that the matters raised in the CAFCASS letter were either “impending prosecutions” or related to Domestic Abuse. Nor was it possible, based on what was in the letter, to say that the report of an ex-partner going to a refuge was because of Domestic Abuse (see P52 D). The District Judge then knew that there was an important factual dispute about both of those matters and he was not in a position to say that the Father’s position was incorrect.

He has not set out what evidence he relied upon to satisfy the test set out in S.38. What were the “reasonable grounds” ? What was the risk of imminent “significant” harm in the circumstances before him. Why was an Interim Supervision Order not satisfactory and an Interim Care order proportionate? This court does not know, because there is no judgment. This court cannot analyse his reasoning because it is not apparent. I have directed my attention to the Transcript and P48 F; P50 H to P52 B; 52 D to 53B (where I note that the District Judge expressly refers to “….. I understand that there are two sides to every story, [Father].” ); at P62 B – D (where the District Judge directs an Interim Care Order “for eight weeks” and then agrees to “subject to any court approved extensions”.) but none of that sets out adequately his reasoning.

In my judgment, nothing in the material before the District Judge could be said to be “reasonable grounds” for believing that the matters set out in S.31(2) then existed. The report at P75 does not expressly say that it was a domestic incident and Father denied that it was; there was no evidence by the conclusion of the hearing on which it could be said that it was reasonable to conclude that there was continuing domestic abuse. Similarly in relation to the material at P78. At best the District Judge was in a position to say that there needed to be a contested hearing on whether an Interim Care Order was required and then to consider if an Interim Care Order was both necessary and proportionate in the interval – but he failed to consider that course of action altogether.

In addition, in the transcript the District Judge clearly referred to making the Interim care Order last for 8 weeks (see P37 B-C). I do not understand by what means he then ordered “until the next hearing or further order of the Court”. No reason is provided for that extension.

In relation to the direction for a S.37 report: the CAFCASS letter advised the Court that it believed an urgent S.37 assessment needed to be completed (P81) based on the history of Social Services involvement. I note that there were some false premises to this recommendation, e.g. that there were “impending prosecutions” and that it was a concern that Father was looking after AM “on the basis that he completed a Domestic Abuse Perpetrator Program” and there were “impending prosecutions”. However, in the circumstances presented to the District Judge it was within the reasonable ambit of judicial discretion to have directed the S.37 report. He was entitled to conclude, at best, that a Supervision Order might be appropriate. Accordingly, the concession of Counsel for Father was well made.

I turn then to the Prohibited Steps Order. While there is no express judgment on this aspect of his order, either, there is enough within the transcript to see that his purpose was to ensure that the forthcoming S.37 investigation was not impeded by Father and AM visiting [Blank].

There are two problems with that reasoning: first, S.9(1) prohibits the making of a Prohibited Steps Order where there is a care order, which is what the District Judge was directing; secondly, such an order ought not to be made where the result can be achieved by making a child arrangements order (see S.9(5)). Here, by way of example, if no Care Order was being made, the court could have directed that if the Father wished to take AM abroad he must apply to the court for permission.

The further problem with this Order is that the District Judge was bound to make this decision having regard to the welfare of the child, which was his paramount consideration and therefore to apply the Welfare Checklist at S.1(3) (see also MW v LD [2020] EWHC 893 (Fam)). This was a restriction on the child from seeing his family in [Blank] and or holidaying abroad with his family. Was it in his best welfare interest to make such an order? Nowhere in the transcript can I detect any reference to what was in AM’s best welfare interest; the District Judge was clearly using this power to try to ensure the swift investigation under S.37.

It is also difficult to see anywhere in the transcript any discussion about imposing a Penal Notice (see P65). I cannot see that Father was invited to put his side of any argument as to whether it was right to impose an order which might put his liberty in jeopardy. Once again, because there is no judgment, there is no analysis of his decision. Indeed, it seems to me likely that it had not been in contemplation at the hearing, was inserted into the order by counsel drafting the order and approved by the Judge without regard to the fact that it had not been dealt with properly at the hearing.

For all these reasons the appeal must succeed in relation to the Orders making an Interim Care order; the Prohibited Steps Order and the Penal Notice attached to it.

The failure to provide a judgment was a procedural irregularity; furthermore, there were no reasonable grounds for believing that circumstances with respect to AM were as mentioned in S.31(2). At best, the District Judge could have required a contested hearing as to the making of an Interim Care Order but there would not have been a sufficient basis for making an Interim Care Order in the meantime.

There was no judgment in relation to the imposition of a Prohibited Steps Order and that was a procedural irregularity by itself justifying this appeal. Further, there is no evidence in the transcript that the District Judge considered S.1 of the Children Act 1989 either in respect to the making of a Prohibited Steps Order or in attaching a Penal Notice.

I was informed at the hearing that this matter is listed to be heard again by DJ Lynds on the 15^th August. That hearing is vacated and this matter should be listed before the Designated Family Judge with a time estimate of 1 hour for further directions