(In Private)
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
LORD JUSTICE MUNBY
(sitting as a judge of the Family Division)
In the matter N (A Child)
Between :
A | Applicant |
- and - | |
(1) G (2) N (by his guardian, CP) | Respondents |
Dr Michael Pelling for the Applicant (father) (pursuant to leave of the court granted under section 27(2) of the Courts and Legal Services Act 1990)
Mr David Holden for the First Respondent (mother) (pursuant to leave of the court granted under section 27(2) of the Courts and Legal Services Act 1990)
Ms Shelagh Farror (instructed by Goodman Ray) for the Second Respondent (child)
No hearing : matter decided on the papers by agreement of the parties
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
.............................
LORD JUSTICE MUNBY
This judgment was handed down in private but the judge hereby gives leave for it to be published in this form
Lord Justice Munby (sitting as a judge of the Family Division) :
I handed down my final judgment in this matter on 17 July 2009: Re N, A v G and N [2009] EWHC 1807 (Fam), [2010] 1 FLR xxx. On 6 August 2009 I handed down a supplementary judgment dealing with questions of costs and leave to appeal: Re N, A v G and N [2009] EWHC 2096 (Fam), [2010] 1 FLR xxx. I refused the father leave to appeal: ibid at para [72]. He renewed his application to the Court of Appeal. Wilson LJ refused him leave on 10 November 2009: Re A (A Child) [2009] EWCA Civ 1249.
I do not propose to rehearse or even to summarise any of those judgments. I take them as read. Anyone who may hereafter have occasion to read this judgment should first read all three of them.
For present purposes it suffices to draw attention to the following quotations. I go first to Re N, A v G and N [2009] EWHC 1807 (Fam), [2010] 1 FLR xxx, and the passages where I set out the guardian’s views. In paragraph [17] I quoted what the guardian had said in July 2008:
“Examination of the papers reveals a wholly deplorable situation. N is a young boy who has two parents who love him but who have demonstrated an unwillingness or inability to put his needs first and who as a result of their relentless pursuit of their own agendas have caused him emotional harm and arguably that emotional harm is significant. This situation cannot be permitted to continue. The parents need to stop trying to score points against each other and examine instead their own actions to ensure that N and his needs are put first.”
In paragraphs [70]-[72] I set out the guardian’s more up-to-date views:
“She has in mind N’s oft stated desire for the litigation to come to an end so that he is not the focus of dispute between his parents. In her view, continuing litigation by either parent can only be detrimental to his welfare. There is no benefit to N in continuing litigation. On the contrary, she is clear that his welfare is being damaged by the on-going acrimony and the consequent stress and anxiety that the litigation causes to his parents.
For that reason the guardian would suggest that now is an appropriate time for a section 91(14) order to be made, and for at least two years, this being, she says, “essential” to N’s future well-being. This will give N and his parents a breathing space to focus and concentrate on making the agreed arrangements set out in the consent order work, without the anxiety of ongoing proceedings or the constant stress of the threat of further litigation, and to focus and concentrate on making the time that N spends with each parent as enjoyable and stress free as possible.
In support of her contention that there should be a section 91(14) order the guardian makes a number of further points which, as it seems to me, have a very profound and much wider significance:
(i) There have been continuous proceedings concerning N’s residence and contact since the father issued his first application in November 2003 when N was aged 2½. N has therefore spent most of his childhood subject to the uncertainties, tensions and effects that the litigation has had upon him and his parents and their care of him.
(ii) N has demonstrated stress and anxiety beyond his years. He has pleaded with his school, with Ms JJ, the independent social worker, and with the guardian that he wanted the fighting to stop and the judge to stop “the trouble”. Ms JJ’s concerns about the parents, in the context of this “highly antagonistic litigation” having the capacity to undermine N’s wellbeing, were such that she was even considering whether the case was more appropriately a public law case.”
In that judgment, as in the following judgment, I expressed criticisms of both parents, as, indeed, had the guardian. But my criticisms of the father were more serious. Thus in paragraph [83] I said this:
“Sadly the father is simply deaf to any message but his own. His reaction to the guardian’s wise words, and the tone in which he chooses to present his most recent submissions … is a depressing and revealing commentary on his whole approach. Not merely, and most importantly, on his continuing failure to prioritise N’s welfare over his (the father’s) animus against both the mother and the guardian – indeed his animus against anyone who does not agree with him – but also on his relentless determination to pursue the litigation, as long as it takes, and by pressing every point, however trivial, technical or pettifogging, until he eventually has his way.”
My overall approach was set out in paragraphs [202]-[203]:
“ … it is high time that these parents – both of them – began to take several and joint responsibility as parents for N’s future. Parental responsibility, as defined in section 3 of the 1989 Act is not merely a platform for litigation, let alone for endless applications to the court of the kind pursued so relentlessly and for so long by the father. It is “all the rights, duties, powers, responsibility and authority” (emphasis added) which by law … a parent has in relation to their child. These parents – the father in particular – need to shoulder the burden of their parental duties and parental responsibilities. They have an obligation – a moral and parental obligation; not merely a legal obligation – to their son (never mind their obligation to the court) to discuss between themselves and to decide how he is to live and how he is to be brought up. They merely abdicate that responsibility if they come to court, particularly in relation to matters as comparatively trivial as some of those on the father’s list. And what do they imagine their son thinks of them, what do they imagine their son will think of them in future, as a teenager and later as an adult?
… the more the court is drawn into the process of imposing solutions which the parents are unwilling or unable to agree themselves, especially the more trivial the issues to be resolved, the more impotent the parents will become in arriving at their own solutions, the more they will come to rely upon the court as a crutch, as a provider of answers to any and every question, however trivial. Far from encouraging them to assume the parental responsibilities which nature and the law have imposed upon them, and them alone, the court if it allows itself to be cajoled down this road will simply be encouraging them to avoid, indeed to shirk, their responsibilities. And how long is this process to continue? N is only a little over 8 years old. Is the court to remain involved until he is 16 or 18? Certainly not!
… there is the effect of all this on N. I need not repeat what the guardian has repeatedly, insistently and correctly said. Unless the court now disengages, and, more importantly, unless his parents now buckle down to the twin tasks of making the consent order work and, where appropriate, of giving it the necessary consensual ‘tweaking’, the future for N will, I fear, be bleak. For unless the parents do now buckle down, unless the court declines – resolutely and with immediate effect – to arbitrate where the parents refuse to agree, even though they can and should be able to agree, the process will continue until N simply ‘votes with his feet’, perhaps, and worst of all, until he abandons them both, pronouncing a ‘plague on both your houses.’
There must be an end to this and the time is now ripe – some might think over-ripe – for that step to be taken and for the court to decline to adjudicate further on these issues. In my judgment I would be failing in my duty were I to tolerate the further procrastination which will be the inevitable consequence of a failure on my part to act decisively – and to do so here and now.”
As I have said, the father’s application for leave to appeal was refused by Wilson LJ. The father sought to challenge my decision on no fewer than 18 grounds. All were dismissed by Wilson LJ as being “unarguable” and numbers 1-13 as being “totally without merit” within the meaning of CPR 52.10(5): Re A (A Child) [2009] EWCA Civ 1249 at para [21]. In relation to ground 1 Wilson LJ described (para [9]) the father’s “perpetuation of this entirely sterile argument” as “an abuse of the process of both courts.” In relation to ground 2 he described the application to me as being in his view (para [10]) “a gross example of the attempted generation of litigation for litigation’s sake”, “mischief-making on the part of the father” and “a disgraceful attempt to stir up trouble” and the further attempt to ventilate the issue in the Court of Appeal as “almost laughable.” In the course of his judgment Wilson LJ also referred (para [3]) to “the father’s astonishing attitude to this litigation”, (para [5]) to “the extreme level of stress which the father has placed upon [the mother] by his protracted use or abuse of the forensic process”, (para [17]) to the “relentless litigation surrounding N for so long”, (para [19]) to the father’s “indiscriminate forensic misbehaviour, so inimical to the emotional interests of N” and (para [20]) to “the father’s forensic misbehaviour, which has now developed into open contempts of court”.
With the dismissal of the father’s application to the Court of Appeal there remain outstanding only the applications by the mother and the guardian for an order – against both parents – under section 91(14) of the Children Act 1989: see Re N, A v G and N [2009] EWHC 2096 (Fam), [2010] 1 FLR xxx, at paras [5], [58]-[60].
In accordance with directions I gave on 5 August 2009, as adjusted by a further order I made on 15 October 2009, the guardian filed her written submissions, prepared by Ms Shelagh Farror, on 16 September 2009, the mother filed her very brief written submissions on 27 September 2009 and the father filed his skeleton argument, prepared and signed by Dr Pelling, who described himself (correctly) as ‘advocate for the applicant by leave of the court’, on 16 November 2009.
The guardian’s stance, as elaborated in Ms Farror’s written submissions, was that an order under section 91(14) was “essential to protect N’s future wellbeing and prevent him suffering further emotional harm from the behaviour of each of his parents” because “without an order being made … the litigation will continue endlessly and unchecked to the emotional detriment and harm of N.” She opined that in all the circumstances the order should be for a period “well in excess of two years” and in any event “into his adolescence and possibly until he is 16.” In her very brief written submissions the mother said she basically agreed with the guardian’s submissions.
Dr Pelling’s skeleton argument is so extraordinary, even if, unhappily, all too characteristic of previous documents put before the court by him or his client, that I should set it out in full. After a brief introduction it continues as follows:
“1 As all know, the Applicant was refused Leave to Appeal to the Court of Appeal by Lord Justice Wilson on 10 November 2009 … The Applicant’s submissions are not designed to pursue any further legal remedy against that refusal or against the decision of Mr Justice Munby (as then was), because there is none (ECHR apart which is considered pointless and futile). They are designed to explain why the Applicant will not be making any further private law applications or having any further involvement in private law proceedings concerning his son.
2 The Applicant considers that both Mr Justice Munby and Lord Justice Wilson have abused their positions of power and authority as judges, have violated their judicial oaths, and have acted in gross dereliction of their duties towards the child the subject of these proceedings. They have diminished the rule of law, have acted with partiality in pretence of the child’s interests, and have substituted other principles for the paramount consideration of the child’s welfare. In the Court of Appeal, Lord Justice Wilson gave a Judgment almost totally devoid of merit which failed to grapple with nearly all of the Applicant’s Grounds of Appeal, though it did include a fair amount of vilification of the Father. It was however an excellent example of the current modus operandi of that Court.
3 These accusations will be justified at the hearing on 24 November 2009, if the Court so permits. It is these accusations with their justification, and the decisions made by their Lordships which are now final with no further recourse of appeal, that have caused the Applicant to conclude that he would but sully himself and his son were he to have anything more to do with the Family Division in private law proceedings under Section 8 of the Children Act 1989.
4 Accordingly a s 91(14) order should not be made against the Applicant because there is simply no need for it; no further applications will be made by [him]; he has quit a corrupted system and will have nothing more to do with it, permanently.
5 Doubtless and nonetheless, a s 91(14) order will be made. The Applicant through his advocate will then ask for Leave to Appeal against that order. Notwithstanding the dicta of Mr Justice Munby that the High Court has the power to compel an appellant to disclose his reasons for asking for Leave to Appeal and his proposed grounds of appeal, both [the Applicant] and myself as his advocate continue to deny that power and shall rigorously not supply reasons or grounds save in the Court of Appeal. If Lord Justice Munby (sitting in the High Court) really thinks he has that power then let him enforce it and hold us in contempt and commit us to prison until we purge our contempt by disclosing reasons and grounds. One only has to say this to see how very laughable is this claimed power of the Court.”
The reference in paragraph 5 of that diatribe is to what I said in the judgment I gave on 6 August 2009: see Re N, A v G and N [2009] EWHC 2096 (Fam), [2010] 1 FLR xxx, at paras [16], [65]-[71] and, for Wilson LJ’s views on the point, Re A (A Child) [2009] EWCA Civ 1249 at paras [2], [20].
Despite that stance, it appears that the father put a proposal to the guardian that there should be an agreed order for a period of two years. The guardian’s response to that, in an email to the father from her solicitor on 16 November 2009, was as follows:
“The Guardian has carefully considered your suggestion that an order under s 91.14 should be made by agreement for a period of two years. She is of the view that this period is too short a time in all the circumstances but she would not oppose an agreed order for a period of 4 years.”
The following day (17 November 2009) Dr Pelling circulated the following email:
“[The father] is prepared to agree that a s 91(14) order should be made for a period of 4 years as offered by the Guardian … A response on this proposal is awaited from Mr Holden for [the mother]. However, even if [she] wanted a longer period then I cannot see any point in holding a ½ day hearing to argue over this and I can say provisionally that having agreed to 4 years neither [the father] nor myself intend to waste time and costs (not to say valuable court time) in coming to a virtually pointless hearing on 24 November. I would invite the Court to make a 4-year order and have done.”
The following day (18 November 2009) my Clerk sent the following email to the parties:
“Lord Justice Munby has received an email from Dr Pelling indicating that [the father] is prepared to agree to an order for 4 years as proposed by the Guardian. The judge would like to hear as soon as possible from [the mother] and Mr Holden whether this is acceptable and, if not, what period they would propose.”
In an email she sent to the father later the same day (18 November 2009), the guardian’s solicitor reported that:
“Mr Holden has indicated that [the mother] is considering suggesting that the order is made to a date post N’s Bar Mitsvah ie around 4 and half years. I calculate this as being to 24 May 2013. What would be your views on this (assuming the Guardian was still of the view that 4 years was the appropriate time).”
The father’s response was circulated by Dr Pelling the following day (19 November 2009):
“[The father’s] instruction is that if a 4 year order cannot be made then he totally withdraws his consent to any order being made and reverts to the position set out in his Skeleton of 16 November, that for the reasons outlined there, no order is needed at all.
It is submitted that [the mother], or maybe Mr Holden, are being mischievous and irresponsible in seeking to further perpetrate litigation and waste court time. A 4 year order made now would expire in November 2013 when N would be 12½ by which time he will doubtless have a strong mind of his own. It is hard to see any necessity for an order beyond 4 years; however, with the Bar Mitzvah imminent in March 2014 (not May 2013) and bearing in mind [the mother’s] usual wrecking approach it might well be desirable to leave open the option of an application being made after November 2013, in N’s own interests. So given also the Guardian's acceptance of 4 years I cannot see any basis for an order going beyond that.
If [the mother] cannot agree 4 years then she is being unreasonable and if she wants to push this to a hearing then she should pay the costs if the Court orders 4 years.
It may be helpful if your Lordship gave some indication of your own state of mind on this issue, without of course in any way binding you in relation to a hearing if that had to take place.”
Mr Holden’s response came later the same day:
“I am very confused.
1 The Guardian was most forceful in her arguments that the s 91(14) Order should expire upon N’s 16th birthday, that is almost 8 years.
2 It now appears that the Guardian is prepared to consider just over half that period.
3 I can’t seem to grapple with the idea that a child is treated as a commodity with which one can trade.
4 For the following reason I am also very disturbed.
5 Paragraph 3 & 4 of Dr Pelling’s submissions states [and they are then set out].
6 Yet in his most recent email to you Dr Pelling writes that after 4 years, [the father] may need to make further applications. Two days after [he] says he will never have anything to do with the Family Courts, he talks about making applications. I have a feeling of deja vu. [The father] appears to have a habit of resiling from his position almost immediately.
7 Thus a s 91(14) Order is required.
8 [The mother] and N have always wanted the litigation to stop and if she has to trade in order to do so even for a period that is less than that originally requested, then so be it. At least there will be 4 years of near stability.
9 N will be bar mitzvah in March/April 2014. Thus if the s 91(14) is limited to 4 years, then there is a possibility that further applications will be made by [the father] which undoubtedly will cause N some anguish leading up to the most important day of a Jewish Boy’s religious life, his Bar Mitzvah.
10 Accordingly, a s 91(14) Order to expire after the Bar Mitzvah would surely be in the best interests.
11 I agree with Dr Pelling, and would like to know your views, without binding you in any way. It would be very helpful and may avoid an unnecessary hearing.”
On 20 November 2009 my Clerk circulated the following email to the parties:
“Lord Justice Munby has read and considered the emails dated 19 November from Dr Pelling and Mr Holden.
It occurs to him that it might be helpful if the guardian could indicate to the parties the thinking which has led her to accept an agreed order for 4 years – ie, until November 2013 when N will be 12⅔ – whereas in her skeleton argument she had been suggesting ‘into his adolescence and possibly until he is 16’. It might also assist if the guardian could indicate to the parties her thinking as to the desirability of the order ending before or extending until after N’s Bar Mitzvah in March 2014 – which on one reading of recent emails may be the (or one of the) issue(s) lurking behind the dispute as to whether the order should be for 4 or 4½ years.”
The guardian’s response the following day, 21 November 2009, in an email from her solicitor, said:
“Thank you for passing on the message from his lordship which I have discussed with the Guardian.
The skeleton filed on behalf of the Guardian did indeed invite the court to consider making a lengthy order under s 91(14), in light of the history of the litigation and its effect on N. She remains of the view that he needs a substantial period of time when his parents are not engaging in litigation about him, given that such litigation inevitably brings with it stress to all involved. The mother indicated that she would not oppose the making of an order. The Guardian was then encouraged to receive an approach from the father saying that he would agree to an order being made without the need for any further attendance at court. He suggested that the order was made by agreement for a period of 2 years.
The Guardian felt that it was incumbent on her to consider the possibility of an agreed order and gave the question of the length of the order renewed consideration. She particularly considered N’s position and development. She put forward a suggestion of 4 years as being a reasonable compromise which would protect N for a set period of his development. The mother responded by indicating that she would agree a shorter period but would like that period to be of 4 and half years which would take N beyond his Bar Mitzvah. At the same time the father renewed his request for a 2 year period because of concerns he had about the fact the mother has now moved into her own accommodation with N. The Guardian’s response to both suggestions is as set out in the email below which was sent to the parents on 19 November.
I trust this assists his lordship. The Guardian would welcome agreement on this issue. She would not oppose an order being made for a longer period of time if his lordship was minded to do this but does not feel able to change her position given that if she does so the father will inevitably renew his accusations of her bias against him.”
The email sent to the parties on 19 November 2009 by the guardian’s solicitor had been in the following terms:
“I have discussed the various messages sent over the last few days with the Guardian. She has noted the skeleton filed on behalf of [the father] in which it is said on his behalf that, as he does not intend to issue any further private law s 8 applications, a s 91.14 order is unnecessary. This would appear to be at odds with other messages sent.
The Guardian will need persuading to move away from her suggestion of 4 years. [The father] has suggested a shorter period because he has concerns about the effect the mother’s move into her own accommodation might have on N. [The mother] suggests a longer time to take N past a significant event in his life. The Guardian does not agree to a shorter order because she has made it plain that these proceedings need to end and that both parents need to commit their energies to making the order of July 2008 work effectively. A period of time when either parent will need permission from the court to issue any further applications will give N the respite he wants and she remains of the view that the 4 years she has proposed is reasonable. She does not accept either that a period of over 4 years is necessary. In her view, N will meet highly significant stages in his life at regular intervals and the parents will have to work together to reach agreement where necessary. She hopes that the provisions already made in the order to cover N’s Bar Mitzvah will cover this event.
It almost goes without saying that the Guardian's hope is that there will indeed be no further applications made by either party once the order expires. She would expect that the court and any Guardian appointed would take a particularly dim view of an application issued immediately the order expires.”
Dr Pelling’s response on behalf of the father to the email sent by the guardian’s solicitor on 19 November 2009 was constructive:
“[M]ay I suggest a way to resolve matters without the necessity for an oral hearing on 24 November.
In truth, the 91(14) issue has become a very narrow one, whether the duration of the order should be 4 years (agreed by Guardian and [the father]) or whether it should be 4½ years ([the mother]). It seems absurd to have to hold a hearing on this; I see no reason why it cannot now be settled on paper, say with all Parties being allowed to make any further submissions on the point by email, up to Monday 4pm. I have discussed this with [the father] and he agrees it’s a reasonable way forward, and is content to let your Lordship decide on the basis of all submissions you have received in writing as at 4pm Monday.
I can set out [the father]’s final observations here now, which are directed to the carping of others who accuse him of inconsistent stances as set out in his Skeleton (no order needed at all) and in his being willing to consent to a 4 year order. The stances are not the same of course but so what? – it’s perfectly normal in any kind of civil litigation, including family law cases, for a party’s contested trial stance to be different from what they are willing to accept in negotiations on a consent basis, thereby avoiding the burden of a trial and the risk of doing worse. Of course, negotiations in such case are often conducted, partly to avoid weakening one’s contested trial case, on a “without prejudice” basis – but [the father] has deliberately avoided that, considering with me that an agreement was more like to come with open proposals that could be put before your Lordship, and thus allow for your Lordship’s own input, from the beginning.
It will also be said that [the father] cannot both say he will never apply and that he might need to apply in relation to the Bar Mitzvah, for fear of [the mother] spoiling that occasion. That is a fair observation: the answer is that the Bar Mitzvah is of such fundamental importance to his son’s life in Jewish custom and tradition, that he could not risk anything affecting it adversely, even if that meant having to apply to the court as a last resort. It is the one thing not negotiable and the one thing for which he would apply. Of course, we all hope that no necessity would arise. It is submitted that this being such an important milestone in N’s life, there should not be a fetter on applying in relation to it, if need arose (and applying on short notice, which a s 91(14) bar could delay, if circumstances warranted). [The father] is suspicious about [the mother]’s motive in trying to extend the s. 91(14) period beyond the Bar Mitzvah. It does seem odd that she should choose a figure like 4½ which conveniently takes one just past the crucial Bar Mitzvah date.
Although [the father] has often disagreed with the Guardian, it remains that the Court, consistent with the law as it has developed, has always given great weight to the Guardian’s views and proposals. In this case for once the Guardian and Father are now at one; in my respectful submission [the mother] has not provided any good reason, or reason at all, for the Court to depart from the Guardian’s position, and I would ask your Lordship to make the order accordingly.
Let me conclude with a couple more submissions by way of tidying things up. The Court must not only determine the duration of a s. 91(14) order but also the scope; I would not regard this as contentious: I trust all parties could agree that it should cover any s. 8 application under the Act.
Finally, the Guardian has already indicated she wants to exit from this case. I would propose that on the making of the s. 91(14) order N should cease to be a party and thus the appointment of the Guardian would thereupon lapse.”
Mr Holden responded later the same day (23 November 2009):
“I am in receipt of Dr Pelling’s email to you setting out [the father’s] final position with regard to the s. 91(14) Order.
I must apologise if I gave the wrong impression. [The mother’s] position is that the s. 91(14) order should be in accordance with Guardian’s submissions, ie till N has reached the age of 16. Indeed, [the mother]’s submission was very short, in that she agreed with Guardian.
Dr Pelling’s submission to oppose the 91(14) was essentially, that since [the father] will never make another application to the Family Division, the imposition of a s. 91(14) order would be pointless.
That submission is now wholly discredited, as Dr Pelling now says that [the father] will make applications under certain circumstances, he cites the period before N’s bar mitzvah.
My email to you was intended to explain, and the position remains, that if your Lordship was minded to consider the period of 4 years, then, and only then, [the mother] requests that you consider the effect of another residence application by [the father], the day after the expiry of the s. 91(14) order, leading up to N’s Bar Mitzvah. Thus, if your Lordship was considering the shorter period, then allow N that buffer of 6 months.
I am also concerned about what is best described as bullying tactics of Dr Pelling/[the father]. He has now accused everyone, who disagrees with him (including both Your Lordship and Lord Justice Wilson) of being inept, biased as well as a host of other disparaging comments, the result of which is to inevitably cause an element of fear. He challenges the Court and indeed makes a mockery of it.
I am particularly drawn to the email by Ms Williams on behalf of the Guardian who states in her final paragraph that she cannot change her view because she is concerned that the father will accuse her of bias.
To summarise [the mother]’s position is as follows:
1 That a s.91(14) order be made to expire when N reaches the age of 16.
2 That the hearing listed for the 24th November is effective.
3 That if Your Lordship decides on paper (which will be accepted without the need of a hearing) that a shorter period is appropriate, then that period should preclude any s. 8 Application and in particular any residency, contact or spend time with application by the father before N’s Bar Mitzvah.”
Mr Holden followed that with another email making it clear, for the avoidance of doubt, that the section 91(14) order should not apply to the Schedule 1 proceedings, so that the mother be able, as he put it, to make such applications as necessary to enforce that order.
In response, my Clerk sent the following email to the parties:
“As the judge understands it, both [the father] and the Guardian are agreed that the period should be four years and have made their final submissions as to why that should be so.
Dr Pelling has suggested that, rather than spend time and money on a hearing tomorrow, the parties should agree that the judge decide the matter on paper, on the basis that any further submissions are received by him (by email) by 4pm today. The judge is willing to proceed in this way if, but only if, all parties agree.
Can I please have your immediate responses as to whether (a) this is or is not agreed and (b) if it is, whether you would propose to make any further submissions (the judge rather assumes that only [the mother] may wish to do so).
The judge will also need to know what [the mother]’s and the Guardian’s responses are to the two matters raised in the final two paragraphs of Dr Pelling’s email.”
The responses from both Mr Holden and the guardian’s solicitor indicated that their clients were content that I deal with the matter on paper and that neither wished to make any further submissions. Dr Pelling again confirmed that as being the father’s position also. I accordingly vacated the hearing fixed for the following day, 24 November 2009.
I now give judgment.
In her skeleton argument Ms Farror helpfully took me through the relevant authorities: Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573, Re S (Permission to Seek Relief) [2006] EWCA Civ 1190, [2007] 1 FLR 482, and Re J (A Child) (Restriction on Applications) [2007] EWCA Civ 906, [2008] 1 FLR 369.
I need not rehearse the learning. This is the most plain and obvious case for a section 91(14) order it is possible to imagine. Such an order is not merely appropriate, not merely ‘necessary’ in the sense in which that word is used in the Strasbourg jurisprudence (if, indeed, that is even a relevant consideration in this context, a point which I need not take up time discussing); it is, in the light of all the circumstances and the history of the litigation as described and analysed in the three judgments referred to in paragraph [1] above, absolutely essential if the mother and more particularly N are to be spared a continuation of litigation which has not merely been going for so large a part of N’s life but which, at least in recent years, has exhibited the features about which both I and Wilson LJ have been compelled to comment in such stringent terms.
Moreover, and in all the circumstances, it seems to me that the order should apply not merely to the father but also to the mother. I appreciate that the mother has not been guilty of the litigation misconduct which has exemplified the father’s behaviour for too long. But the fact, and fact it is, is that she is far from blameless and that she, as well as the father, bears a significant measure of responsibility for the current state of affairs. Furthermore, and in saying this I accept without reservation the guardian’s analysis of the impact of the litigation on N and of the pressing need to protect him from its perpetuation, the only way, in my judgment, in which N can be protected from a continuation or renewal of the litigation – something which in my assessment is vital for his happiness and wellbeing – is if both parents are subject to the same restraint, if both parents are prevented from making any application to the court without having first persuaded a judge of the Family Division that the application should, despite the appalling history of the litigation to date, nonetheless be permitted to proceed.
In the event, of course, both parents have accepted that an order should be made, and the mother has accepted that it should apply to her as well as to the father. But I do not want them, or anyone else, to be under any illusion or misunderstanding. I would have come to precisely the same conclusions, and for precisely the same reasons, whatever stance they, or either of them, might have been adopting.
The only argument deployed against this is Dr Pelling’s proposition that no order should be made against the father because there is simply no need of it, the father declining to have anything further to do with what he calls this “corrupted system.” In the event this argument has not been pursued but I should make clear that I would certainly not have been prepared to accept it in any shape or form.
In the first place, the history of the father’s forensic antics (I need not describe them yet again but they will be found rehearsed in detail in three of my judgments: Re N (Payments for Benefit of Child) [2009] EWHC 11 (Fam), [2009] 1 FLR 1442, Re N, A v G and N [2009] EWHC 1807 (Fam), [2010] 1 FLR xxx, and Re N, A v G and N [2009] EWHC 2096 (Fam), [2010] 1 FLR xxx) explains why, unhappily, one simply cannot rely upon protestations from the father such as are set out in paragraphs 1 and 4 of Dr Pelling’s skeleton argument. Even assuming that the words were genuinely meant by the father at the point when he authorised Dr Pelling to put them forward on his behalf, I can have not the slightest confidence that on some future occasion, when it suits him, the father will not repudiate them. Thus far, my view as matters stood on 16 November 2009. But the second point, of course, is that made by Mr Holden in paragraph 6 of his email of 19 November 2009, a point to which Dr Pelling had no effective answer. Indeed, in his response to what Mr Holden had said, Dr Pelling, as we have seen, acknowledged that there might be circumstances in which the father would apply to the court in relation to N’s Bar Mitzvah – an acknowledgement that simply cannot be squared with the father’s previous unequivocal and unqualified statements that he “will not be making any further private law applications or having any further involvement in private law proceedings concerning his son” and that he “has quit a corrupted system and will have nothing more to do with it, permanently.”
Given the compelling – indeed, overwhelming – need for an order, the only real question, and in the event, as we have seen, the only question in contention between the parties, is as to the appropriate period for which the order should be expressed to operate.
I have set out the parties’ contentions on this point at some length. I agree entirely with the guardian that, in the particular, indeed exceptional, circumstances of this unhappy litigation, two years would afford inadequate – in my judgment wholly inadequate – protection. As the guardian correctly opined, a period well in excess of that is necessary. Indeed, I can well understand why she contemplated that it might even be appropriate to protect N until he is 16 – ie, for a period in excess of seven years.
In the event the dispute between the parties has come down to whether the order should be made for 4 or for 4½ years, not that I am, of course, in any way bound by the parties’ views. On the contrary, and despite the guardian’s carefully articulated reasons for ultimately recommending that the order should last for only 4 years, I have had to consider very carefully whether that does in fact provide N with a sufficient degree of protection, and I have to say plainly that I have come very close to concluding that it does not. I have also been very concerned by the fact that the dispute between the father and the mother should have crystallised around an issue – whether the order should be for 4 years or for 4½ years – devoid of any intrinsic merit in a context where mathematical precision is impossible and where, I very much fear, the reason why the parties have focussed on that particular timescale has little to do with N’s welfare and everything to do with their jockeying for position in relation to what they are already identifying as a potentially major bone of contention: N’s Bar Mitzvah in a little over 4 years time.
On balance, however, I have concluded, though not, I have to confess, without some lingering misgivings, that the guardian was right to recommend, and for the reasons she gave, that the order should last for four years.
I shall accordingly make an order under section 91(14) that until after 25 November 2013, and subject only to one exception, no application for an order under the Act of any kind may be made with respect to N by either the father or the mother without the leave of a judge of the Family Division. The one exception is that, as appropriately agreed between the parties, nothing in this order shall prevent either the father or the mother applying to the court in relation to the financial matters referred to in paragraph 8 of the order I made on 6 January 2009: see Re N (Payments for Benefit of Child) [2009] EWHC 11 (Fam), [2009] 1 FLR 1442, Appendix 2. The order will also provide that N cease to be a party, with the consequence that the guardian’s appointment will thereupon lapse.
In making this order, but confining its operation to the period of four years, I wish to spell certain things out so that there is no room for any misunderstanding:
In the first place, the mere fact that the section 91(14) order I am making is time limited to a period of four years does not mean that I am accepting that there will, either at the expiry of that period or at any time thereafter, be any justification for either parent making any application to the court. Quite the contrary. I repeat what I said on an earlier occasion as set out in paragraph [6] above. And I endorse the guardian’s observation in the last paragraph of the email of 19 November 2009 quoted in paragraph [21] above. Any future application by either parent must be justified, and the mere fact that the section 91(14) order may have ceased to bite is not, cannot of itself be, any justification for a further application.
The second point is this. Whilst the section 91(14) order remains in force no application can be made without the prior consent of the court. But even after the section 91(14) order has ceased to bite the court will, of course, still be able to exercise the powers which I analysed in Re N, A v G and N [2009] EWHC 1807 (Fam), [2010] 1 FLR xxx, at paras [219]-[234] – in particular, the power of summary dismissal of an application which is unmeritorious or the pursuit of which is not in the child’s best interests. Given the history of the litigation to date I anticipate that any judge in future, even if the section 91(14) order has expired, will wish to scrutinise with an appropriately questioning and sceptical eye any application by either parent which is not securely founded on some really material change of circumstance.
Finally, both parents, and the father in particular, will do well to bear in mind (a) the observations I made in Re N, A v G and N [2009] EWHC 2096 (Fam), [2010] 1 FLR xxx, at para [52] as to the potential exposure to adverse costs orders in the event of future unsuccessful applications and (b) the observations Wilson LJ made in Re A (A Child) [2009] EWCA Civ 1249 at para [21] in relation to civil restraint orders.
Finally, both parents would do well to bear in mind the limited ability of the court to resolve parental disputes as to the arrangements for a Bar Mitzvah: see, for example, Re G (Maintenance Pending Suit) [2006] EWHC 1834 (Fam), [2007] 1 FLR 1674, at paras [34]-[35]. And in any event, such profoundly important religious matters are surely far better resolved within the community, if need be with the assistance of the parties’ religious and other advisers, than by a secular court. I would be very disappointed indeed were I to learn that some dispute about N’s Bar Mitzvah had become, for whatever reason, the occasion or the excuse for further litigation. And N would surely be more than disappointed – he is likely to feel embarrassed, perhaps even angry and humiliated – if it becomes apparent to him that his parents are not able to agree even on that.
I invite the parties to draft for my approval an appropriate order to give effect to this judgment. So far as concerns the costs, I propose to order that there be no order as to costs, save for the usual direction that the guardian’s costs be assessed.