Public Law
November 2022

Background: In early 2020, the mother was murdered by the father. With the assistance of two of his brothers, the father hid the mother’s body so that its whereabouts were unknown until late 2020. The father was found guilty of her murder by a jury in early May 2022 and in June 2022, he was sentenced to life imprisonment with a minimum term of 18 years before he is eligible to be considered for parole.

The mother had two children with the father and was the stepmother to the father’s child from his previous marriage. All three children were placed together in foster care under interim care orders made on 7 April 2020 following the arrest of the father.

The applications before the court were as follows:

a) the local authority sought care orders for each child on the basis of plans that they live in long-term foster care. The children have lived with their current foster carers since August 2021 and it is intended that these carers should be their long-term carers;

b) the local authority sought permission pursuant to s.34(4) of the Children Act 1989 to refuse contact between the children and their father;

c) the local authority sought the court's leave to invoke the inherent jurisdiction pursuant to s.100(3) of the Children Act 1989 and, if granted leave, for the court to authorise and/or declare

(i) that the local authority need not consult with the father on decisions about his children's care and well-being;

(ii) that the local authority should provide the father with limited information by way of twice yearly written reports on the children's progress without disclosing details of the whereabouts of the children's foster home or schools; and

(iii) that it was lawful for the local authority to exercise its powers pursuant to s.33(4) of the Children Act 1989 to prevent the father exercising his parental responsibility so as to obtain information or make decisions about the children's care;

d) and the local authority sought an order pursuant to section 91(14) of the Children Act 1989 providing that any future application made by the father to either vary the orders made at this hearing or to seek other orders under the Children Act 1989 would require the permission of the court before any such application could proceed.

The care proceedings had been delayed by the need to await the outcome of the criminal trial. On 5 October 2022, the first day of the final hearing, the father was without legal representation, having parted company the previous day with both counsel and his instructing solicitors. On 6 October 2022, the father instructed new solicitors and the matter was adjourned until 19 October 2022.

The father conceded, by virtue of his conviction for murder and incarceration in prison, that he was not - absent a successful appeal against conviction - in a position to care for the children. He sought to have contact and a relationship with his children.

Care Orders: Knowles J concluded that on the balance of probabilities that the father killed the mother and was responsible for hiding her body for six months. Knowles J was satisfied that this behaviour caused or was likely to cause significant harm to the children as they were deprived of both their primary carers and suffered emotional trauma arising from the mother's disappearance and the subsequent discovery that she had been killed. Knowles J was also satisfied on the balance of probabilities that the children were exposed to harm from incidents of domestic abuse in which they were either struck by the adults caring for them or in which they witnessed adults assaulting each other and their siblings.

Knowles J concluded that there was only one realistic option for the children's care, namely long term fostering and approved the plan for them to remain in long-term foster care.

Contact: Knowles J noted that contact between the children and their father is fraught with complexity. All three children had requested face to face contact with their father. The local authority sought permission to refuse direct contact between the children and invited Knowles J’s approval of its plan for the children to have indirect contact with their father every six months by way of an exchange of letters/cards. Orders pursuant to s.34(4) are permissive orders which allow the local authority to adjust how contact takes place in accordance with the needs of the child and not with the demands of an adult. Knowles J made the order sought by the local authority.

Inherent Jurisdiction Orders: Section 22 (4) of the Children Act 1989 places a duty on a local authority before making any decision with respect to a child whom they are looking after or proposing to look after, to - so far as is reasonably practicable - ascertain the wishes and feelings of the child and his parents. Additionally, but not exhaustively, a local authority is under a qualified duty to provide information to a parent about where a child is being accommodated (regulation 15(2) of Schedule 2 of the Children Act 1989) and an Independent Reviewing Officer is also expected to ensure that - so far as practicable - parents are consulted for the purpose of child in care reviews (regulation 36 of Schedule 2 of the Children Act 1989). Finally, there are expectations that parents will be consulted about personal education plans for a child in care (paragraph 18 of the statutory guidance entitled "Promoting the education of looked after children and previously looked after children: Statutory guidance for local authorities", February 2018). A local authority may decide the extent to which it will restrict the exercise of a parent's ability to exercise their parental responsibility if it is satisfied that it is necessary to do so in order to safeguard or promote the child's welfare (see sections 33(3) and 33(4) of the Children Act 1989). However, this does not absolve the local authority of the separate and arguably antecedent duty to consult a parent. Consultation requires the provision of information to enable the consultee to engage meaningfully with the process.

Case law has recognised that, in an appropriate case, a local authority may be authorised not to consult and share information with a parent about the child's progress, welfare or upbringing (see, recently in that regard, Knowles J’s own decision in Re X and Y (Children) [2018] EWHC 451 (Fam) and A Local Authority v X and Others [2019] EWHC 2166 (Fam)). However, as Knowles J noted in paragraph 52 of Re X and Y, a local authority should only be absolved from its duty to consult and to provide information to a parent in exceptional circumstances. The only way of authorising these departures from the local authority's statutory duty was to permit the local authority to invoke the inherent jurisdiction and then to make declaratory orders.

Section 100(3) of the Children Act 1989 requires the local authority to obtain the court's permission before making any application for the exercise of the court's inherent jurisdiction with respect to children. Section 100 (4) provides that the court may only grant permission if it is satisfied that:

(a) the result which the local authority wishes to achieve could not be achieved by either the making of orders otherwise than in the exercise of the court's inherent jurisdiction or making orders for which the local authority were entitled to apply; and

(b) that there was reasonable cause to believe that if the court's inherent jurisdiction were not exercised with respect to the child, the child was likely to suffer significant harm.

In this case, the local authority submitted that the involvement of the father in the children's life for the foreseeable future needed to be significantly restricted as it would be harmful to the children to understand that their father was so involved. It would also cause anxiety to both the carers and the children if the father had information as to the whereabouts of the children's placement, their schools, their healthcare and their counselling/therapy. Knowles J decided to grant permission to the local authority to apply for the orders it sought because Knowles J was satisfied that the grounds set out in s.100(4) were made out. Knowles J made the declarations and orders sought by the local authority with the caveat that, as the local authority accepted, it should provide the father with information if any of the children have a life-threatening health emergency. Likewise, if any of the children have a life-threatening condition which is not an emergency, the local authority should apply to the court without notice to the father if it seeks to withhold the information from him.

Section 91(14) Order: The Court of Appeal's decision in Re A (A Child) (Supervised Contact) (Section 91(14) Children Act 1989 Orders) [2021] EWCA Civ 1749 placed the legal principles engaged when making a section 91(14) order into a modern context. It also considered how the provision set out in s.67 of the Domestic Abuse Act 2021 might impact on the well established guidelines for the making of section 91(14) orders set out in Re P (Section 91(14)) (Guidelines) (Residence and Religious Heritage) sub nom: In Re P (A Minor) (Residence Order: Child's Welfare) [2000] Fam 15; [1999] 2 FLR 573. Section 67 of the Domestic Abuse Act 2021 has been in force since 19 May 2022 and amended the Children Act 1989 by inserting section 91A which is entitled "Section 91(14) Orders: Further Provision".

Section 91(14) provides that "on disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) 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". An order pursuant to this section thus acts as a filter restricting a parent's automatic right to apply to the court for Children Act orders.

Knowles J set out in full the Re P guidelines. Knowles J noted that, in its analysis, the Court of Appeal in Re A noted that the forensic landscape had changed out of all recognition since the Re P guidelines came into being and drew attention to the advent of social media, the smart phone and email coupled with a significant number of unrepresented parents in private law proceedings. Despite the court's powers of case management, litigants regrettably bombarded the court or the other party with emails, either because of anxiety in some cases, or in others, as part of a campaign of oppressive behaviour by one parent against the other (see paragraphs 34-35). This behaviour caused distress and anxiety both to the party on the receiving end and to the children at the centre of what the Court of Appeal described as a "raging dispute" (paragraph 36). Such behaviour underlined the need for the court to use s.91(14) orders to restrict access to the court in cases of repeated and unreasonable applications. Additionally, the Court of Appeal noted that the court's jurisdiction to make such orders may be invoked in cases where the child's welfare required it even though there was no past history of making unreasonable applications. There was considerable scope for making these protective orders in the changed litigation landscape described in Re A since to do so would not only protect an individual child from the effects of endless unproductive applications and/or a campaign of harassment by the absent parent, but tangentially would also benefit all those other children whose cases were delayed as court lists were clogged up by the sort of applications which should never have come before a judge (paragraph 40).

At paragraph 50, Knowles J added “Noting the imminent changes to section 91(14) orders envisaged by the Domestic Abuse Act 2021, the Court of Appeal in Re A observed that section 91A dovetailed with the modern approach outlined in that decision. It noted that the provision at s.91A(2) gave statutory effect to guideline 6 of Re P by permitting a s.91(14) order to be made where the making of an application under the Children Act 1989 would put the parent or child at risk of physical or emotional harm (paragraph 45). Likewise, section 91A(4) requires the court when considering whether to grant leave to consider whether there had been a material change of circumstances. The Court of Appeal in Re A noted that this provision would put the current approach to the granting of leave on a statutory footing (paragraph 46)”.

Knowles J concluded that without the imposition of a permission filter, the children would be subject to unacceptable strain and risk of harm if further applications were made. S.91A(2) provides that an order may be appropriate if the child is at risk of harm, harm being defined in accordance with section 31(9) of the Children Act 1989 to mean "the ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another". The risk that harm may arise to a child under the age of 18 unless the making of applications is restrained is not qualified by words such as "serious" or "significant" and neither is the degree of harm that a child may experience. Knowles J observed that, insofar as the risk that harm may arise to a child is concerned, section 91A(2) sits a little uneasily alongside guideline 7 of the Re P guidelines which states that there must be a "serious risk [my emphasis] that, without the imposition of the restriction, the child or primary carers will be subject to unacceptable strain". Correctly applied to a child's circumstances, section 91A(2) gives a court greater latitude to make section 91(14) orders than the Re P guidelines do. Thus, in coming to a decision in this case, Knowles J applied the new statutory approach to harm set out in s.91A(2) rather than guideline 7 of the Re P guidelines and, in so doing, Knowles J adopted the ordinary civil standard of proof. That course is consistent with the modern approach of the Court of Appeal in Re A as outlined above.

Knowles J observed that section 91A(3) introduces a narrower definition of harm which applies to a child or other individual who has reached the age of 18, namely that harm is to be read as a reference to ill-treatment or to the impairment of physical or mental health. The explanatory notes to the Domestic Abuse Act 2021 provide that this narrower definition has been used because, in contrast, the definition in s.31(9) of the Children Act 1989 encompasses elements specific to a child, such as the impairment of development.

Knowles J “thought very carefully about the degree of restriction I should impose and, in so doing, taken into account the Re P guideline 10. My assessment of the harm which may arise if the father were to make further applications is that it would be grave and profoundly destabilising for each of these children. I have also considered the duration of any s.91(14) order and have concluded that these orders should last until each child is 18 years old”.