Contact orders – Fairness – Orders restricting further applications – Residence orders

Re G (a child): CA (Civ Div) (Lords Justice Ward, Rimer): 6 November 2008

The appellant father (F) appealed against a decision of the judge to make an order under section 91(14) of the Children Act 1989 against both him and the respondent mother (M) and a residence order in M’s favour.

F and M were the parents of a three-year-old girl (G). After their separation, F applied for and was granted contact with G. F appealed against the level of contact ordered. The day before the hearing, M informed F of her intention to apply for an order under section 91(14) of the act. At the conclusion of the contact hearing, the judge ordered more generous contact with F. He then went on to consider the section 91(14) application and concluded that the case was clearly one where such an order was appropriate because of F’s entrenched belief that he should have 50% of G’s time and the risk that he would make further applications to the court that would be detrimental to G. The judge therefore imposed an order under section 91(14) restraining both F and M from making any application under section 8 of the act, without the court’s leave, for a period of three years. M then brought to the judge’s attention the fact that no residence order had been made in respect of G, and she invited him to make such an order in her favour. F, who was acting in person, objected to the application and requested an adjournment in order to have more time to consider the legal implications. The judge expressed sympathy for F’s lack of opportunity to deal with the question of residence, but nevertheless went on to make a residence order in M’s favour on the basis that that reflected the reality of the situation. F contended that (1) the case was not one that called for the imposition of a section 91(14) order; and (2) the judge’s failure to adjourn the application for the residence order had been unfair.

Held: (1) The guidelines concerning when the court should impose a restriction under section 91(14) of the act were clear. The ability of the court to grant such an order where the child’s welfare required it was restricted to situations where the court found facts beyond those commonly encountered, Re P (a minor) (residence order: child’s welfare) [2000] Fam 15 CA (Civ Div) applied. In the instant case, the judge had failed to take that into account, neither had he taken account of other admonitions in the guidelines that a section 91(14) order was a remedy to be used sparingly as an exception and not the rule to guard against repeated applications. Where F’s applications to the court had all been well-founded and not excessive in their demands or their number, there was no evidence of a risk of detriment to G from further applications or that M had reached saturation point so that she too was suffering. The judge’s exercise of discretion in making the section 91(14) had, accordingly, been flawed and the order was set aside.

(2) The failure to give F, as a litigant in person, the opportunity to deal with a matter of importance to him, namely the residence order, amounted to a procedural irregularity and had been unfair. The judge should have adjourned M’s application and his failure to do so had deprived F of the level of fairness he was entitled to expect. The residence order was, accordingly, discharged.

(3) (Per curiam) The whole purpose of the 1989 act had been to dispose of concepts of ‘custody’ and ‘access’ and their associated rights and powers. A residence order or contact order gave no rights but regulated a factual state of affairs. Rights over a child were conferred by parental responsibility, and every parent granted parental responsibility was entitled to exercise it while the child was in their care.

Appeal allowed.

In person for the appellant; Charlotte Street for the respondent.