Barnsley Metropolitan Borough Council v EM & Ors

In December 2023, care proceedings brought under Part IV of the Children Act 1989 concluded with a care order being made in favour of Barnsley Metropolitan Borough Council (hereafter ‘the Applicant’) in relation to a young person, T, who is now aged 12. The Applicant now brings before the court two further applications, both issued on 16 January 2024, seeking the following orders against T’s father, EM (hereafter ‘the Respondent’ (Footnote: ¹)):

By case management order made by Poole J on 15 February 2024, the court of its own motion has directed that at this hearing I shall further consider:

At the hearing of these applications, the Applicant is represented by Ms Stanistreet-Keen. The Respondent is neither present nor is he represented; I address his absence in the next section of the judgment. T’s mother is represented by Ms Noble, who has generously acted pro bono, and T’s Children’s Guardian is represented by Ms Chu.

For the purposes of determining these applications, the Applicant has filed a large bundle of material relevant only to this hearing, helpfully including a chronology of the multiple applications which have been made by the Respondent during the course of the proceedings (which I have reproduced in Appendix A). I have been provided with the exceptionally large trial bundle which had been prepared for the care proceedings. I have had the chance to read a small sample of the applications issued by the Respondent in recent months, which are all in the same tone and with similar content (which I discuss below). I have also received a statement from the Cluster Manager for the Humberside and South Yorkshire, HMCTS North East Region, which I reference more fully at §17 and §18 below.

This judgment is being published in an anonymised form. I had been tempted to name the Respondent in this judgment, but am conscious of the adverse impact or potential impact on T of naming their father publicly. Were it not for that dominant factor, I would have concluded that the Respondent himself should not be allowed to avail himself of the protection of anonymity which is commonly ascribed to parties in judgments published from the Family Court and Family Division of the High Court. The Respondent is injuncted separately from publishing details of this case, breach of which would occasion separate punishment; should he make any attempt at publication of information in the public domain arising from these proceedings, his conduct should be capable of being countered promptly by the facts recorded here. The anonymity which I have afforded the Respondent in this case at this stage is therefore capable of review should circumstances change.

The Respondent did not attend the hearing. He had been directed to file a statement of evidence in response to the applications identified in §1(i) and (ii) above. He did not do so.

Over a week ago, on 13 March 2024, the Respondent wrote to the court advising that he had been “admitted to hospital” on the previous day with “possible meningitis”; he indicated that he did not consider that he would be well enough to participate in the hearing on 21 March 2024. This was one of at least two e-mails sent to the court at or about the same time on that day; in the other e-mail he made a characteristically wide range of allegations against professionals and the court service including that social services were abusing T in care. I caused a reply to be sent to the Respondent, expressing my concern at his stated condition and requesting a medical certificate in order to inform my decision as to whether to vacate the hearing.

On 15 March he replied:

On 20 March 2024, the Respondent sent through an e-mail to the court continuing to complain of ill-health and requesting an adjournment. On the same day, he sent to the court by e-mail (under the subject header: ‘Kidnapping’) a TikTok video; I have deliberately not opened the video file, but have been advised by a member of the court office that it is a ‘a clip of a self-made documentary (sic.) by an unknown individual on how forcing children from their families, and court ordered adoptions are a money making scheme’.

On 20 March 2024, he sent a further e-mail advising that he had visited the doctor “who did tests and found I had high blood pressure, I am suffering from stress, tension and anxiety”, and requesting that the hearing of the applications for injunctions be vacated as he has “not been given time to obtain legal representation” and insufficient time to ‘prepare a defence’.

At 02:58hs this morning, the Respondent sent a further e-mail to the court which contained the following:

I am satisfied that the Respondent is aware of the hearing having been served with notices of the relevant hearing; he has referenced the hearing date in his e-mails. Over a week ago, I asked for a medical certificate, and was told by the Respondent that he would not obtain one and that he “won’t be attending court”. The Respondent has not had legal representation since November 2022, and has not instructed lawyers since that time notwithstanding the explicit encouragement to do so by the many judges who have presided over hearings in the case; I have seen recordings on orders to that effect. I am told that whenever the local authority lawyer has written to the Respondent she has provided him with a list of children panel solicitors.

I am wholly unpersuaded that the Respondent intends, or has ever intended, to attend this hearing. He has deployed a variety of explanations for not attending today, none of which withstand scrutiny. Having had regard to the provisions of rule 27(2)/(3) FPR 2010, I am satisfied that the Respondent has had proper notice of the hearing, and that the circumstances of the case justify proceeding in his absence.

The Respondent is the father of a young person (T), now aged 12. T is now the subject of a care order which was made in December 2023. T was removed into the care of the Applicant in September 2022 under interim protective measures; proceedings under Part IV of the Children Act 1989 were commenced. Assessments were undertaken during those proceedings, which led to a final hearing in December 2023. The judge conducting the final hearing found that the section 31 ‘threshold criteria’ had been established on the evidence by reference to a number of serious findings (including findings against the Respondent) concerning T’s care. It is not necessary for me to rehearse those findings here.

T is placed away from their family; they have been the subject of an order depriving them of their liberty. The Respondent now has limited contact with T. The Respondent sought permission from the Court of Appeal to appeal the final care order. In his Grounds of Appeal he requested that a number of people, including the Designated Family Judge for Sheffield and the judge who had conducted the final hearing should be “referred to the police and the CPS for conspiring to pervert the course of justice, child abuse, false incrimination, blackmail…” and various other alleged offences. Peter Jackson LJ refused permission to appeal in these terms:

During the care proceedings, the Respondent had filed numerous unfounded and in some respects offensive applications; accordingly, on 6^th February 2023 the court made a limited Civil Restraint Order until the conclusion of the proceedings in the usual terms. Notwithstanding the making of that order, the Respondent made further applications, and appears (on occasions at least) to have obtained fee remissions to do so. I return to this later (see §45).

Following the making of the care order, the Respondent has continued to inundate the court with email correspondence and formal applications, to such an extent that it has interfered and continues to interfere with other court business, and with the interests of other litigants. The Cluster Manager at the Humberside and South Yorkshire, HMCTS North East Region has filed a statement which reveals that in the period between 1 September 2023 and 29 February 2024 (the dates selected by Poole J in order to give a measure of the Respondent’s recent activity) the Respondent has corresponded with the court at least 760 times (though it is almost certainly more than this). On some days there were multiple e-mails. The tone of this correspondence (extracts are quoted in the statement of evidence) is highly abusive and threatening.

The Cluster Manager says this:

It appears that the Respondent is determined to challenge the lawfulness of the final care order. I have read some of his correspondence and, as mentioned above, his applications; each contains offensive content, the tone is extremely aggressive, inflammatory and belligerent. Some of the correspondence and applications contain explicit threats to the professionals involved in T’s case and to the judiciary. The proper means of challenge to the final order is, of course, by way of appeal; the Respondent has exercised his right to seek permission and this has failed (see §15 above).

On 11 January 2024, the Respondent issued purported applications for ‘an emergency protection order, care order and supervision order’, effectively for the discharge of the recently made care order. On 16 January 2024, the Applicant countered this by issuing applications for (a) an order under section 91(14) CA 1989 and (b) an Extended Civil Restraint Order. On 17 January 2024 HHJ Pemberton case managed the Applicant’s application; having regard to the guidance offered in Re H (A Child) (Recusal) [2023] EWCA Civ 860 she refused the Respondent’s application for her to recuse herself.

On 14 February 2024, Poole J dismissed the Respondent’s various applications referred to above and certified them as totally without merit. He gave various further case management directions and specifically made orders designed to limit, or avoid, continued disruption to the functioning of the family court at Sheffield as a result of the Respondent’s persistent correspondence, contact and filing of applications. In making his order, Poole J recited:

Section 91(14) CA 1989 provides:

A section 91(14) order may be made on the application of those identified in section 91A(5) CA 1989 or of the court’s own motion (ibid.). When the application for the section 91(14) order was issued by the Applicant there were at least two ‘live’ substantive applications (by the Respondent) before the court. These were all in fact been dismissed by Poole J on 14 February 2024. In the circumstances, there are no ‘live’ applications within the CA 1989 proceedings for me to ‘dispose of’ at this hearing to which I could attach a section 91(14) order. However, as I say, section 91A(5)(b) of the CA 1989 makes clear that the court can nonetheless make this order ‘of its own motion’. Having discussed this with counsel, and mindful that no party is prejudiced by the change of jurisdictional peg on which to hang the order, I have concluded that this is the route by which I can reach a point where I may exercise my discretion whether to make the order or not.

Section 91(14) is supplemented by section 91A which provides, inter alia, that:

The starting point is the decision of the Court of Appeal in Re P (A Minor) (Residence Order: Child’s Welfare) [2000] Fam 15. In her judgment Butler Sloss LJ makes a number of important ‘guideline’ points, including, crucially, that section 91(14) should be read in conjunction with section 1(1) – the welfare of the child is the paramount consideration. The guidelines offered by Butler Sloss LJ have to some extent been eclipsed (but not in that regard: see below §26) by the introduction of section 91A, (above). This establishes a new, lower, statutory threshold for the deployment of a s 91(14) prohibition by which the power may be exercised when the court is satisfied that the making of an application for a CA 1989 order of a specified kind would put the child concerned or another individual at risk of harm.

The application of section 91A is further explained by Practice Direction 12Q from which I draw out the following passages of relevance to the instant case:

More recent judicial commentary on this provision includes F v M [2023] EWFC 5 where Hayden J said:

There is no need for me to reproduce in this judgment the current jurisprudence in relation to these orders given that this is in fact an uncontested application; I am nonetheless aware of and have had regard to Re A (A child) (Supervised contact) [2021] EWCA Civ 1749, [2022] 1 FLR 1019, and A Local Authority v F and others [2022] EWFC 127. The judicial views expressed in those judgments, with which I agree, is that section 91A(2) gives greater latitude to the court to make section 91(14) orders than the previous guidance.  Although the circumstances of this case are in many respects exceptional, this would not be a necessary finding before making such an order. In relation to duration, I am clear that any term imposed should be proportionate to the harm which I am seeking to avoid.

An extended civil restraint order may be made where a party has persistently issued claims or made applications which are totally without merit (PD4B, para.3.1 FPR 2010). Unless the court otherwise orders, the party against whom such an order is made is restrained from making applications in any court "concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order was made without first obtaining the permission of the judge identified in the order" [Practice Direction 4B, paragraph 3.2(a)]. Three unmeritorious claims or applications have been described as the bare minimum needed to constitute persistence (see In the matter of Ludlum (a bankrupt) [2009] EWHC 2067 (Ch), and see Gwynneth Knowles J in AEY v AL [2018] EWHC 3253 at [66]).

Leggatt J (as he then was) in Nowak v The Nursing and Midwifery Council [2013] EWHC 1932 (QB) explained the ‘rationale for civil restraint orders’ thus:

By his order dated 15 February 2024 Poole J has directed that I should also consider making an order prohibiting the Respondent from contacting the court office. In a case with some similar characteristics, I made such an order under the Mental Capacity Act 2005 and associated rules in Re TA [2021] EWCOP 3. In Re TA I relied on the comments in a postscript to the judgment of King LJ in Agarwala v Agarwala [2016] EWCA Civ 1252, in which she said this ([71]/[72]):

In Re TA, I continued:

In this case, I am satisfied that similar considerations apply, and that there is a powerful case indeed to protect our court staff from the Respondent’s actions.

I can summarise the arguments briefly.

It is the Applicant’s case that the facts in this case speak for themselves; Ms Stanistreet-Keen presents an overwhelming case for injunctive relief, and the other respondents to the application agree.

Ms Stanistreet-Keen argues that it is both necessary, and proportionate, and in T’s best interests that I should make a section 91(14) order which prohibits any application for contact, prohibited steps, specific issue orders or to discharge the care order. She makes clear that the impact on T of any interaction with the Respondent is profound. Their placement has recently broken down and the Local Authority has made further applications which are to be considered by Poole J tomorrow in that respect. Continued court proceedings are deeply unsettling to T.

It is pointed out that the Respondent has now made thirty-five applications to the court since September 2022. They have all been dismissed, many (including most recently by Poole J on 14 February 2024) as totally without merit. It is in those circumstances, that I am asked by the Applicant to make an ECRO for the maximum period of 2 years.

The Applicant seeks a further recording on the order that the social worker shall only be required to email the Respondent an update in relation to T on a fortnightly basis. In the event of an emergency, the social worker will telephone the Respondent but in the event the Respondent is abusive over the telephone the social worker will be at liberty to end the call.

The mother and Children’s Guardian unequivocally support the application.

Although the Respondent has not attended court, he has filed a number of documents and sent e-mails to the court which make it clear that he does not accept the care order which was made after full enquiry in December 2023. In fact he does not accept the validity of any order made in these proceedings nor the findings or protective measures which have been put in place. He seeks the immediate return of T to his care and has bombarded the court with communications in apparent pursuit of this goal. He alleges that all of the professionals, including the judiciary, who have been involved in this case are lying and corrupt and he will make complaints and bring private prosecutions against them.

There is no doubt in my mind that the Respondent has made, and continues to make, an extraordinary number of repetitive, inflammatory, vexatious, disruptive and harmful applications in respect of T. Although there was a lull in his activity after the making of the limited civil restraint order in February 2023, he appears to have been able to continue to make these applications notwithstanding the imposition of a civil restraint order made in February 2023. I am deeply sorry that the hard-pressed and greatly valued court staff employed by HMCTS in this Family Court have been subjected over a prolonged period to the wholly unwarranted interference with their working lives by the repeat correspondence from the Respondent, and the appalling invective which has characterised many of his communications.

In his correspondence and in the applications, the Respondent continues to make inappropriate comments and threats in respect of professionals involved in safeguarding T and legal professionals. I am conscious that this behaviour is highly upsetting for them too and equally unacceptable.

I am told that T is profoundly unsettled; their placement has recently broken down, and their situation is fragile. They cannot withstand any influence or interference which would have the effect of undermining their limited stability. In all the circumstances of this case, I am satisfied that it is right to make the order under section 91(14) and propose to make that order until T attains the age of 16. T is entitled to that level of protection from the inevitable harm caused by the Respondent’s dogged and unrelenting, but wholly misguided, attempt to destabilise their placement.

In this case I am satisfied that the Respondent has persistently issued claims or made applications which are totally without merit, and that it is appropriate to make the ECRO for the full period of two years. I propose to make the order to restrain the Respondent from making applications in the High Court, the Family Court, or the County Court, concerning any matter involving or relating to or touching upon or leading to the proceedings in which this order is made (care proceedings concerning T) without first obtaining the permission of Mr Justice Poole or, if unavailable Mr Justice Cobb. I propose to make this order until 4pm on 20^th March 2026. Naturally if the Respondent wishes to apply for permission to make an application in these proceedings or to make an application to amend or discharge this order, he must first serve notice of his application on the other parties.

I would like to add one final important point about the ECRO. I note that the in or about September 2023 the Respondent resumed making applications to the court after the civil restraint order had been made in February 2023; in that regard it appears he also obtained a fee remission of the application fee through the ‘Help with Fees’ scheme. It should be made clear here for future reference that a person against whom a civil restraint order has been made cannot apply for help with fees; if they need to apply for permission to make an application to the court, they must pay the full court fee. If successful, they can then apply for a refund by completing and submitting form EX160 to the court within three months of the decision.

In the exercise of my inherent jurisdiction, and in light of all that I have said here, I propose to make an injunction, in the terms set out in Appendix B, to restrain the Respondent hereafter from communicating with the court office by e-mail and telephone. While this is undoubtedly an exceptional order, it is in my judgment entirely justified by the facts of the case; there is a substantial risk that the process of the court will continue to be seriously abused, and that the proper administration of justice in the future will be seriously impeded by the Respondent unless I intervene now with appropriate injunctive relief.

In my judgment these orders represent a proportionate restriction on the Respondent’s ability to communicate with the court office; he may continue (should he have the need to do so) by sending letters to the court office through the agency of Royal Mail. The Respondent should note, however, my direction that he cannot expect a response from anyone in the court office (which may in fact be by e-mail from the court office if they choose) to his correspondence, if his correspondence with the court office is abusive. 

In light of the order under the inherent jurisdiction, I propose to discharge the interim order which Poole J made on 14 February 2024, which has, in the intervening weeks, served well to place some structure around the processing and filing of the voluminous correspondence from the Respondent with the court office.

Appendix A Schedule of applications

The Respondent is hereby prohibited until further order from telephoning or sending any e-mail to any office, member of staff or judge, of the High Court, the Family Court or County Court whether personally or through his servants or agents.

If the Respondent, whether by himself his servants or agents, sends a letter by stamped Royal Mail, containing abuse of any member of staff or judge to any office, member of staff or judge, of the High Court or of the Family Court or County Court, then that letter together with any enclosures or attachments, may be filed, destroyed, or deleted without being read and without any acknowledgment or reply being sent.

For the avoidance of doubt, any application for permission to make an application whether under section 91(14) and/or under the terms of the ECRO shall be made in writing and posted to the court office in Sheffield, and shall then be referred to a judge in accordance with the terms of the section 91(14) order and/or the ECRO.

For the avoidance of doubt, this order does not prevent emails being sent to the Respondent by the court office of the High Court or of the Family Court or County Court.

This order may be served on the Respondent by email sent to XXX@XXX but must also be served personally.

Any application for this order to be set aside, varied, or discharged must be made by application or letter and will be heard by Mr Justice Poole or Mr Justice Cobb if available. Such hearing shall be arranged by the court office in Sheffield, in consultation with the clerk to Mr Justice Poole or Mr Justice Cobb.

The order of Mr Justice Poole of 14 February 2024 is discharged.

The full reasons for this Order are set out in the judgment delivered on 21 March 2024 which is reported as [2024] EWHC 657 Fam.

Abuse of the judiciary and of the court staff will not be tolerated.

This order is required to protect the court staff and judges from the Respondent’s persistent and voluminous correspondence and to prevent him from sending intemperate and abusive emails. He will be able to communicate with the Court, but only by stamped letter sent by Royal Mail. Should he, however, send an abusive letter, he has no right to expect that any response will be given to it.

This order shall be personally served on the Respondent.