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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> B v B [1996] EWCA Civ 608 (25 September 1996) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1996/608.html Cite as: [1997] 1 FLR 139, [1996] EWCA Civ 608, [1997] Fam Law 236, [1997] 2 FCR 518

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEATH & PORT TALBOT COUNTY COURT
(HIS HONOUR JUDGE PRICE QC)

		Royal Courts of Justice Strand London WC2
		Wednesday, 25 September 1996

Wednesday, 25 September 1996

LORD JUSTICE BUTLER-SLOSS: This is an appeal by a father from a residence order made by His Honour Philip Price QC in the Neath & Port Talbot County Court (sitting in Cardiff) in respect of his youngest son. On 30 November 1995 the Judge made the order that the youngest son should live with his mother. The father was given leave to appeal by Ward LJ principally on one of the two issues which are before the Court, the first issue being the residence order; the second issue being that the Judge tied to the residence order a direction under section 91(14) of the Children Act 1989 that the father should not be allowed to make an application to the Court without the leave of the Court.

Taking the residence matter first, this particular order of Judge Philip Price was the latest in a line of proceedings before the Court relating to this family. The parents were married on 26 June 1975. There are three children, R, born on 8 January 1979 so he is now 17, I, born on 5 February 1982, so he is 14, J, born on 19 March 1986, and he is 10.

In October 1993 the parents separated and the mother alleged that the father had seriously assaulted her. Criminal proceedings were started on the basis of that assault. Those criminal proceedings were eventually, very sensibly, compromised by both parties agreeing to be bound over. That assault has been the starting point of increasingly acrimonious proceedings between the parents which have inevitably affected the children.

When, as a result of this domestic violence between the parties, the father was obliged to leave home, he went to live with his grandfather who shortly thereafter died. The father has continued thereafter to live in the grandfather's house which, unfortunately, is currently the subject of dispute between the father and the father's parents who are, unhappily, estranged partly as a result of the dispute over grandfather's house. Nonetheless, father continues to live in the house and at this moment he is living there with I. But from 1993 through to the hearing which is the subject of this appeal of 30 November 1995, there has been a to-ing and fro-ing by the children between the two households where all the children at different times have lived with mother and lived with father. At one stage all the children were living with father, that is to say, they slept there, but they had almost all their meals with their mother; their mother continued to do the washing, continued to do all the chores that one expects mothers to do for children, even though the children were living with their father.

One of the problems in this case which was expressed by the Judge in his first main judgment of 24 November 1994, was that the father encouraged the children effectively to denigrate the mother and not to give her a proper place as their mother and the female member of the family. Their decree nisi was on 9 November 1993 and I am not aware as to whether that decree has yet been made absolute.

In November 1993 J, the youngest, returned to live with his mother. In December 1993 I returned to live with his mother; in January 1994 I went back to his father; in May 1994, I went back to his mother. During that period J was still with his mother and R was still with his father. By the time of the first hearing on 22 November 1994, the first major order of His Honour Judge Philip Price -- there was no order in respect of R who was rising 16 -- a family assistance order was made. The Judge, in a careful and lengthy judgment of some 21 pages, was satisfied that the children needed to live together; that mother had been and remained the primary carer of the children; that J was more attached to the mother than to the father and was immature. He found at page 16 of his judgment:

"I find, the wishes of J favour his living with his mother where he has always lived since December of 1993, but expressing watered-down views when in father's home."

I, on the other hand, at that stage was clearly indicating that he wished to live with his father. The Judge pointed out that he has an ambivalence in relation to his mother. That is plain, said the Judge, he is put into an intolerable position by his divided loyalties and by his sensitivity to the situation. It cannot be right that he is placed in the position of having to choose. The court welfare officer pointed out in his report that the boys' wishes should be taken into account, but the Judge, having taken those wishes into account, took the view that J certainly had to be with his mother, and that I ought to be with his mother where he would be better placed, and it was important that the two children should be together. He said:

"I have no doubt at all that J and I should reside together. ... I have no hesitation in finding that the best place for the youngest boy J is with his mother ... I have paused longer in relation to I because of the views he has expressed, but I am satisfied (for the reasons I have said) his particular needs will be best met by residing with mother."

The reason for dwelling a little upon the judgment of 24 November 1994 (which was not appealed by the father) is that there was a very different situation when the matter came back in November 1995. On that occasion, R, somewhat surprisingly, considering that he had been very opposed to his mother, had now decided to return to his mother, which he did on 12 October 1995 a month or so before the second hearing before the Judge.

The middle boy, I, who had been to-ing and fro-ing despite the order of November 1994, finally went to live with his father on 4 September 1995. There was an incident in which his mother lied to him, and the lying rather than incident was what the Judge found precipitated the move of I back to his father. At that stage I was separately represented, and he had the advantage of being seen by a consultant child psychiatrist who provided a report to the Court.

In November 1995 the Judge was faced with a very difficult and indeed almost impossible situation. In November 1994 he had recognised that J and I had a close relationship and ought to live together; that the mother was the primary carer, the mother really had looked after the children in every sense, even when they were living with their father, and that he was satisfied that the best place for I, despite I's expressed wishes to be with his father, was to remain with his mother. Here he had the much stronger situation that I was determined to live with his father. There can be little doubt that underlying this problem was the fact that father is seen, certainly by the mother and to some extent by the Judge, as both manipulative and dominating, and that the father has sought to get his own way and has no doubt exerted a lot of influence on the children to remain with him.

In another long and careful judgment, which was understandably devoted in the first part of it entirely to I, the Judge eventually came, it appears to me, to the reluctant conclusion that I must go where he had voted with his feet, and he made the order that I should live with his father. I perhaps ought to interpose that, since then, although what the Judge called "minimum contact" was actually ordered, we are told that I is seeing his mother on a regular and frequent basis. That is very satisfactory.

The Judge said at page 15 of his November 1995 judgment:

"I also remind myself of the presumption that unless there are strong factors militating against it, the brothers should be brought up together."

At that stage he was considering whether I should remain with his brother J with his mother. Eventually, as I have said, he came to the conclusion that I had to move. That then presented this extremely difficult dilemma of what should happen to J. The Judge found at page 19:

"Mother has in my judgment a better appreciation of the emotional needs of the children, as well as providing better for their physical care.

The other aspect that is of concern is the estrangement between father and the other members of the family. It is fortunately the case that mother has good relations with father's parents and with father's sister and other members of his family, so that through her the children can still have positive relations with that family. At the moment the position is (as [the father] frankly said) that he is not able to speak to his parents, and there is no communication between them ...

I also have to be concerned about the extent to which the non-residential parent's position will be preserved by the residential parent."

He had no doubt at all that mother was more able to preserve that than the father. He said at page 20:

"I remain of the view that mother is able to provide a secure, caring home for the children and to cater for their needs in the former matrimonial home. I remain of the view that, on the criteria that I have looked at hitherto, she is able better to provide a home consistent with their welfare than father is."

But then he goes on to say "the matter does not finish there with I", and for the reasons which I have already set out, he accepted that the distress that would be caused to I by not moving to live with his father on a permanent basis outweighed the other important factors in favour of him remaining with his mother. One of them was that I had been placed in a position of conflict with the Court, and so on.

At page 22 of his judgment he then turned to J. One of the factors which is put very strongly in favour of allowing this appeal, in the argument of Mr Furness, is that the Judge said in November 1994 that it was clear that the boys should be together, and now that he had decided that I had to go to father, it followed that J had to go to father. That is, I have to say, a too simplistic approach to an extremely difficult and sensitive problem. But the Judge grappled with it and the Judge looked at J's needs independent of I, because each child has to be looked at independently of the other.

The Judge found at page 22 of his judgment that J's views were by no means clear-cut. He said:

"Certainly they are entitled to much less weight because of his age and understanding."

This is a child of 10 who is immature. The Judge said:

"I judge him to be less robust and rather immature for his age. I am entirely satisfied that the factors that I have referred to in relation to the abilities of the parents to care come down firmly in favour of mother being better able to meet his needs. I see no justification in what I have heard for any change in the position since November. He has spent much longer periods living with mother than either of the other boys. He has had only occasional periods living with father. That was so before November and has been so since.

The further factor in his case is the question of relations with I and the need in the usual case for the boys to be brought up together. It is right that R is now living with mother, but of course R is a lot older. J is substantially younger than both his brothers. It was clear to me in November 1994 that his place was with his mother, and at that time it was in the context that I should also live with mother. I have to re-evaluate it against the decision that I have now made that I should live with father.

Taking the benefits for J that I have sought to identify of living in the settled home with mother, I weigh that against the separation (as to the roof under which they live) from I, and I come to the conclusion that this is a case where, bearing in mind in particular the extent of the contact that is likely to take place, that it remains right in the welfare of J that he should continue to live with mother. In my judgment a change for him would be damaging. I do not think the accommodation, while it can accommodate the two, would be as good if the two boys are living there, [the father's accommodation] but (more importantly) the physical, emotional and educational needs of J are in my view well met at present."

He took the view the boy should remain with his mother. That decision is the subject of this appeal.

Mr Furness, in his attractive argument to us today, raises two main points: that it is wrong to separate the children, and the Judge has fallen into the error of treating extensive contact as an adequate substitute for actually residing together. He also suggests that he under-estimated the importance of the two children being together. The passages which I have read show that the Judge was grappling (as I said) with an extremely difficult problem. He was well aware, and it is obvious from what he said, that in the normal course of events it is clearly in the interests of children that they should live together. Where parents are in dispute, children give to each other enormous moral support and emotional support. It is only in the unusual case that one has to separate children, and any Judge who separates children does so with a heavy heart.

In this case the Judge has throughout been of the view that mother is the more suitable parent to have the care of both of these children. Significantly, although R is now virtually grown up at 17, he has now seen that he should be living with mother rather than with father. I, having been put to mother, has for reasons which different people might offer different explanations, moved to his father. That may be a very sad result, one does not know. But is J to be pulled like a yoyo to wherever his elder brother decides to go? I is 14. The courts pay a great deal of attention to the views of boys of 14, particularly, as in this case, the court welfare officer recommended the move and the consultant child psychiatrist expressed the concerns of the boy. But the decision as to J had been made in the previous year. J has always lived with his mother, apart from a relatively short period. Mother has always been his primary carer and he is still only 10. Should he be up-rooted from his home because his brother has expressed a firm desire to move? It is a virtually insoluble problem, but the Judge has to make a decision. He could have gone either way. He undoubtedly took into account the importance of the sibling relationship. I do not accept the argument that Mr Furness has put forward that he under-estimated the importance of children living together. He clearly estimated it at its proper value.

In my view, he did not fall into the error of confusing frequent contact with living together, but what he was saying in that passage was that he did not think that J should move; that the usual sadness of splitting children who are fond of each other would at least be mitigated by the fact that the parents only live two or three streets from each other; that these children will have the opportunity to see much more of each other than often happens when children are split and parents live a considerable distance away. On balance I think I would have done what this Judge did, but it does not matter what my view is. What this Court has to decide is: was the Judge plainly wrong in the exercise of his discretion and, if he was not plainly wrong, the duty of this Court is not to interfere.

This Judge, in two impeccable judgments, set out with care, consideration and clarity, the problems that he had to face and the reasons why he came to the decisions to which he came. There is no error of principle. It cannot be said that he left out any matter that he should have taken into account, or took into account any matter that he should not have taken into account. Standing back, as the Court of Appeal has to do, it cannot possibly be said that he was plainly wrong. In so sensitive and difficult a decision which might have gone either way, it is pre-eminently the sort of case where the Court of Appeal ought not to interfere. I would, therefore, unhesitatingly dismiss the appeal in relation to the issue of residence, which in my view is hopeless.

However, the second issue is entirely different. In the second issue, that is to say, whether the Judge should have made a section 91(14) order, in my view the Judge was plainly wrong. He was asked to do so, no doubt, because of the underlying strong suspicions that the father was over-influencing the children against the mother and that father was responsible for the boy moving from mother to father. It is impossible to tell whether that is true or not, but undoubtedly both the welfare officer and the consultant child psychiatrist believed that I held this view, that it was a genuinely held view, and that he knew what it was that he was saying, or was of an age or understanding to form his own conclusions. One bears in mind he is 14. But the fact that the father may have assisted the boy to move from mother to him, is not a reason for saying that there should be a section 91(14) order.

There is an unhappy high decree of acrimony between the parties. That spills over and is always bad for the children. It is clearly bad for children to be subjected, particularly the two younger children, to an unacceptable degree of divided loyalties, and no doubt pressure from both parents, probably mainly from the father. It matters not because, for the purpose of a section 91(14), that in itself again is not a reason for making the order. It is the making of applications that should not be made which is the reason for making the order. If a father, or a mother or a spouse with children, goes on making applications which are applications which are unrealistic, inappropriate, unlikely to have any chance of success because that parent is unable to see that this litigation must stop, then the courts have the power under the Children Act to stop those applications and to require that parent to seek leave to make the application.

I said, in the case of Re H (Child Orders: Restricting Applications) [1991] FCR 896 at page 899:

"It is a very useful weapon in the court's arsenal to keep litigants in family matters, who are carried away by an excessive view of the case or by excessive bitterness, from taking up the time of the court and upsetting the other family. It is not, in my judgment, a run of the mill type of order, nor should it generally be used in that fortunately a minority but nevertheless substantial minority of cases where the bitterness between the parties inevitably is detrimental to the child."

This is one of those cases where the bitterness between the parties is detrimental to the child, but it is not, as I said in Re H, a reason for using this particular subsection. It is a very useful weapon in the arsenal of judicial weapons. It must not be made unless there is a clear basis on evidence for doing it. It is a power which the Court should exercise with great care and sparingly, because it is inevitably denying to a party his inalienable right to bring proceedings in the Court and to be heard in matters which affect his children. Consequently, it should not be used unless that parent has crossed the line from making applications which it is his right to make, to making applications which are in one sense oppressive, or might be said to be vexatious. It is very difficult to have the label "vexatious litigant" pinned upon a litigant. A very elaborate and careful procedure has to be gone through, quite properly, because, again, that affects the rights of the citizen. But there are people who, in family proceedings, pursue their argument beyond that which is reasonable, and those people (who cannot be treated as vexatious litigants) are at a stage prior to being a vexatious litigant but are acting unreasonably. Those people, for the sake of the children, have to be stopped.

This father cannot possibly be said to be in that sort of category. It is possible from what he was saying to the Judge that he might get into that category. I do not say it is probable, but it is possible. If he did make a series of unreasonable applications, the Judge would then have the power to deal with it. I would hope that his lawyers would recognise that it would be unreasonable for those applications to be made, and that they would advise the Legal Aid Board accordingly. Since he is currently either unemployed or only working part-time, I am for the moment at least assuming that he is a recipient of legal aid. There is a duty, as all lawyers know, to make sure that their clients do not make applications which have little or no prospect of success.

His Honour Judge Philip Price, of course, has far more of the flavour of this particular father than this Court has, and it may be he was anticipating a possible future scenario. But it is not the job of a Judge to make this order in anticipation of how a parent may behave unreasonably in the future. This was clearly premature, and there were no grounds, in my view, upon which this order should have been made at that stage. Consequently, I would allow the appeal and set aside the section 91(14) direction.

LORD JUSTICE WAITE: I agree that the father's appeal against the residence order regarding J should be dismissed for all the reasons given by Lady Justice Butler-Sloss to which I do not wish to add anything. I also agree that the father's appeal against the order under section 91(14) should be allowed for the reasons she gives, to which I would only wish to add the following brief comments of my own.

It is easy to understand the motives of judges who, after what is often a fraught and distressing hearing about the future care of children, feel that the dust should be allowed to settle and a quietus be imposed on the family differences; and who seek to achieve that by making an order under section 91(14) imposing the fetter of approval as a condition precedent to any future application. However, such an a approach, understandable though it may be, is in my view misguided and erroneous in law. Tucked away though it may be as one of the 17 subsections of a section whose general purpose is largely administrative, the power under section 91(14) to forbid future applications without leave of the Court represents a substantial interference with the fundamental principle of public policy enshrined in our unwritten constitution that all citizens enjoy a right of unrestricted access to the Queen's courts.

So jealously guarded is this principle in other areas of the law that orders restricting rights of future application are normally reserved as a weapon of last resort to restrain the conduct of litigants whose record has shown them to be vexatious or something very close to that. Section 91(14) therefore falls to be construed strictly.

The authority to which my Lady has referred, as well as the other cases mentioned in Hershman & MacFarlane on Children: Law and Practice paragraph D-315, demonstrate precisely such an approach.

The test that I would favour involves reading section 91(14) in conjunction with the first and most important provision in the Children Act, section 1(1), which makes the welfare of the child the court's paramount consideration when determining any question with respect to the child's upbringing.

The Judge must, therefore, ask him or her self in every case whether the best interests of the child require interference with the fundamental freedom of a parent to raise issues affecting the child's welfare before the Court as and when such issues arise. Had the Judge applied that test in the present case, he would, in my judgment, have been bound to conclude that the father's existing and previous applications to the Court were properly made and came nowhere near supplying justification for the extreme discouragement involved in an order under section 91(14).

ORDER: Appeal against the residence order dismissed; appeal against the direction 91(14) allowed and the direction is set aside; no order as to costs, save legal aid taxation of both parties' costs.