Re S (CA 1989, s 91(14))
[2023] EWHC 1161 (Fam)
P v F
30 October 2023
[2023] EWHC 2730 (Fam)
High Court
A dad wasn't allowed to see his kids because a judge made a quick decision without properly listening to him. The judge's decision was overturned, and the case will be heard again by a different judge so the dad can have a fair chance to explain his side of the story.
Key Facts
- •Appeal by father (P) against a child arrangements order made at a Dispute Resolution Hearing (DRH) granting only indirect contact and a 2-year prohibition on further applications (s.91(14) Children Act 1989).
- •Order made on March 21, 2023, by HHJ Tolson KC.
- •Permission to appeal granted out of time by the President of the Family Division on grounds of procedural unfairness and breach of Article 6 ECHR.
- •Father represented himself; mother (F) did not appear.
- •Twins (L and C, aged 11) live with mother and her partner.
- •Third set of proceedings between parents.
- •Cafcass report recommended no direct contact due to father's behavior, including allegations of abuse and threats, and children's wishes.
- •Father disputed Cafcass report and allegations.
- •Judge made final order at DRH despite father's lack of consent and challenge to the report.
Legal Principles
Dispute Resolution Appointment (DRA) should not be used as a final hearing if a party does not consent and disputes key evidence.
FPR Practice Direction 12B, paragraph 19
Article 6 ECHR: Right to a fair trial, including the right to present evidence and make submissions.
European Convention on Human Rights, Article 6
Article 8 ECHR: Right to respect for private and family life; decision-making process must be fair.
European Convention on Human Rights, Article 8
Section 91(14) Children Act 1989: Court may prohibit further applications; procedural fairness required, especially for litigants in person.
Children Act 1989, section 91(14); FPR PD12B and PD12Q; Re C [2009] 2 FLR 1461; Re A [2021] EWCA Civ 1749
Outcomes
Appeal allowed.
Judge erred in making a final Child Arrangements Order at the DRH without the father's consent and in breach of his Article 6 and 8 ECHR rights. The s.91(14) order was also made without following proper procedure.
Matter remitted to a different Circuit Judge for a hearing.
To ensure a fair hearing compliant with the legal principles outlined.