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England and Wales Family Court Decisions (other Judges) |
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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> F v A Local Authority & Ors [2024] EWFC 13 (B) (13 November 2023) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2024/13.html Cite as: [2024] EWFC 13 (B), [2024] EWFC 13 |
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6th and 7th Floor 11 Westferry Circus London E14 4HD |
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B e f o r e :
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F |
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- and - |
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A LOCAL AUTHORITY |
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and |
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M |
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and |
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THE CHILDREN (through their Guardian) |
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291-299 Borough High Street, London SE1 1JG
Tel: 020 7269 0370
[email protected]
MR K ALI (Solicitor) appeared on behalf of the First Respondent
MS H ATHWAL (Solicitor) appeared on behalf of the Second Respondent
MS J LONNEN (Solicitor) appeared on behalf of the Children's Guardian
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Crown Copyright ©
This Transcript is Crown Copyright. It may not be reproduced in whole or in part, other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
DJ COUPLAND:
Introduction
Background
"Historically, there has been violence and aggression at such a level that the children have been seriously traumatised. The children's high level of fear is therefore linked to concerns about their father, and I find that the father has continued to exercise a regime of control over the mother and the children. I therefore find that the father presents a high risk of controlling, intimidating and aggressive behaviour to the mother, including violence and a high risk of controlling and aggressive behaviour in respect of the children. In light of my finding that the father assaulted X, I consider he presents a risk of physical risk of harm to the children".
"Those risks posed by the father was so high that no contact should take place between him and any of the children on either an indirect or direct basis".
"It was not in the children's best interests to have direct contact now. The children's reaction to the father's application shows that it would be harmful to them to hear anything about or from the father now and in the foreseeable future. There must be no chance of the father learning anything that might expose the children and their placement. The father will need to change a lifetime's behaviour when he is released from prison. The chances of that happening are unknown; it will be extremely difficult. I will not permit any exchange of any information which could put the children's safety and security at risk. Their needs must come before those of the parents".
"The children have been traumatised. A diagnosis of post-traumatic stress disorder in such a young child as Y, and indeed X, is very unusual, and it is a very serious diagnosis, and it is likely to affect Y's mental health and may last throughout his life".
"It is mostly used to stop repeated and unreasonable applications. I have already said that this was not the case here. The position in this case is that the children have continued to be harmed and their mental health affected by a mention of their father. Their carers are likely to be affected in the care of the children by any applications which are made and which they will need to be notified of by the Local Authority. The carers will in turn be affected by the children being affected. The children's life story work has not yet fully started. They are described as very, very vulnerable. They have serious long-lasting diagnoses. Z's long-term diagnosis is still unknown".
"The father has significant work to do to change and address his difficulties and that change would need to be sustained and be demonstrated…. the children also need to get to a position where they want to know about their father, particularly given the harm that he has caused to them".
The current proceedings and Re W application
"I would like the Court and myself to hear directly from X as to why he is so afraid of me and for me to be given the opportunity to respond".
The positions of the parties
The Law
"On disposing of any application for an order under this Act, the court may order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court".
"(2) The circumstances in which the court may make a section 91(14) order include, among others, where the court is satisfied that the making of an application for an order under this Act of a specified kind by any person who is to be named in the section 91(14) order would put—
(a) the child concerned, or
(b) another individual ("the relevant individual"),
at risk of harm.
(3) In the case of a child or other individual who has reached the age of eighteen, the reference in subsection (2) to "harm" is to be read as a reference to ill-treatment or the impairment of physical or mental health".
"(1) Section 91(14) of the Act of 1989 should be read in conjunction with section 1(1), which makes the welfare of the child the paramount consideration.
(2) The power to restrict applications to the court is discretionary and in the exercise of its discretion, the court must weigh in the balance all the relevant circumstances.
(3) An important consideration is that to impose a restriction is a statutory intrusion into the right of a party to bring proceedings before the court and to be heard in matters affecting his/her child.
(4) The power is therefore to be used with great care and sparingly, the exception and not the rule.
(6) In suitable circumstances (and on clear evidence), a court may impose the leave restriction in cases where the welfare of the child requires it, although there is no past history of making unreasonable applications.
(7) In cases under paragraph 6 above, the court will need to be satisfied first that the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the court and the all too common situation where there is animosity between the adults in dispute or between the local authority and the family and secondly that there is a serious risk that, without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain.
(8) A court may impose the restriction on making applications in the absence of a request from any of the parties, subject, of course, to the rules of natural justice.
(9) A restriction may be imposed with or without limitation of time.
(10) The degree of restriction should be proportionate to the harm it is intended to avoid. Therefore, the court imposing the restriction should carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained and the duration of the order".
1) The court's jurisdiction to make such an order under section 91(14) is not limited to those cases where a party has made excessive applications. It may be that there is one substantive live application but that a person's conduct overall is such that an order made under s91(14) is merited. The Re P guidelines do not say that a s91(14) order should only be made in exceptional circumstances, but rather the guideline is that such an order should be the exception and not the rule. In addition, it is anticipated in the wording of the judgment from Re P, that "in suitable circumstances, a Court may impose the leave restriction in cases where the welfare of the child requires it", even if the proceedings were not dogged by numerous applications.
2) The making of a section 91(14) order is not only to protect a child from the effects of endless applications, but also from unmeritorious applications.
3) The Court also has to look at coercive control in circumstances where the Judge forms the view that the type of behaviour of one of the parents is the use of Court proceedings as a weapon of conflict. The Court used the phrase "lawfare". The Court may therefore feel that the making of an order under section 91(14) may provide protection for a parent from what is, in effect, a form of coercive control on the other parent's part.
4) Finally, I must not make an order under section 91(14) to provide breathing space, while things settle down. In addition, I must not make future leave of the Court specifically conditional on a parent doing something such as engaging with therapeutic work.
Analysis and conclusion