Thursday, April 12, 2012

M (A Child): S.91(14) prohibitions must be made with caution

Lord Justice Thorpe
M (A Child) [2012] EWCA Civ 446, reported today on Family Law Week, tells a classic tale of a father losing patience with the system.

On the second day of the hearing of the father's applications for contact and parental responsibility he "lost his self-control" and "ranted at the injustice of the system and at the performance of the guardian". He then applied to withdraw his applications, the judge refused and he walked out of the court. The judge proceeded in his absence, made an an order for contact less generous than that recommended by the guardian, and made a blanket s.91(14) order for two years.

The father appealed against the s.91(14) order.

Giving the leading judgment, Lord Justice Thorpe considered that the judge's reaction to the father's actions had been wrong:
"...standing back, it seems to me apparent that from the standpoint of child welfare, which is and always remains the judge's paramount signpost, the father's outburst was a disaster and if the interests of the child were paramount the judge had to ask herself: how can we recover from this low point? Surely, asking herself that question, an obvious answer would be to give the father time to repent, to give him an opportunity to come to his senses, to adjourn at a minimum for 24 hours to allow [the father and his counsel] to discuss developments and possibilities."
As to the s.91(14) prohibition, Lord Justice Thorpe made two points:

Firstly, that the court must be cautious in making these prohibitions, which "should properly be advanced by application supported by evidence", with the person who is sought to be prohibited being given every opportunity to respond to the application.

Secondly, the limitation should specify the nature of future applications which are not to be issued without permission, rather than be a blanket notice, as here.

Accordingly, the appeal was allowed and the s.91(14) order was set aside.

3 comments:

  1. An interesting lesson in the perils of knee-jerk reaction.
    As an aside, it is interesting to note the judge's seeming bafflement at the concept of a solicitor exercising their leave entitlement.

    ReplyDelete
  2. Yes, I did this also, walked out. There comes a point as a NRP where you realise that the Court is not listening to you at all and that going to court 'for the children' is a contradiction, and also that the Judge is more interested in his own ego and having his backside kissed. Thorpe is also wrong about 'coming to his senses' for that is exactly why he walked out.

    I am scratching around for an alternative, I think perhaps abolishing the CSA.

    ReplyDelete

Thank you for taking the time to comment on this post. Constructive comments are always welcome, even if they do not coincide with my views! Please note, however, that comments will be removed or not published if I consider that:
* They are not relevant to the subject of this post; or
* They are (or are possibly) defamatory; or
* They breach court reporting rules; or
* They contain derogatory, abusive or threatening language; or
* They contain 'spam' advertisements (including links to any commercial websites).
Please also note that I am unable to give advice.