PP v JP & Ors
[2024] EWHC 1697 (Fam)
T-D (Children: Specific Issue Order), Re
12 July 2024
[2024] EWCA Civ 793
Court of Appeal
A judge gave one parent the final say on big decisions about their kids (school, therapy, etc.) after a very nasty separation. A higher court said that wasn't fair, even though the parents fought a lot. They sent the case back to the first judge to make a better, fairer decision.
Key Facts
- •Appeal concerning a specific issue order granting the father overriding parental responsibility for schooling, therapy, and interactions with professionals for two children (aged 9 and 5) in a high-conflict separation.
- •Parents have a history of acrimonious litigation and numerous police reports involving verbal and physical aggression.
- •Children were subject to Child in Need and Child Protection plans due to the parents' conflict.
- •Judge made a 'lives with' order for equal shared care, a 12-month supervision order, and the specific issue order in question.
- •Mother appeals on grounds of lack of power and wrongfulness of the order.
- •The Court of Appeal allowed the appeal on the ground that the order was inappropriate and disproportionate.
Legal Principles
A court's paramount consideration when determining any question with respect to a child's upbringing is the child's welfare.
Children Act 1989, section 1(1)
Section 8 orders (specific issue orders and prohibited steps orders) provide flexible powers to address parental disputes, but interference must be proportionate to the problem and no more than necessary.
Children Act 1989, section 8; Case law discussion
While shared residence orders encourage cooperation, they do not require amicable co-parenting. The court has broad discretion to make orders or not, and should avoid abdication of judicial function.
Case law discussion, particularly Re P (Parental Dispute: Judicial Determination)
Depriving a parent of decision-making power through Section 8 orders is only justified in extreme cases where conventional orders are inadequate to protect child welfare.
Case law discussion; Re B and C (Children)
Outcomes
Appeal allowed on Ground 2 (wrongfulness of the order).
The specific issue order was deemed ineffective, lacked clarity, failed to address the connected issues of residence and schooling appropriately, lacked sufficient evidential basis regarding school choices, and was disproportionate in the circumstances.
Matter remitted to the original judge for urgent determination of schooling and for making other appropriate orders.
To create a more focused and effective order that could better protect the children and encourage cooperation, while maintaining a protective framework.
Paragraphs 7a, 7b, and 7c of the original order (concerning schooling, therapy, and professional access) were set aside pending the new orders.
To allow the original judge to reconsider these issues in light of the Court of Appeal's judgment and ensure appropriate orders are in place.