Earlier this month, I attended a private law hearing held at West London Family Court before His Honour Judge O’Donovan. The judge made a transparency order at the beginning of the hearing. There are some unusual aspects to this case, including a section 91(14) order in place for more than 15 years and allegations by one party that the judge was biased. The judge was positive about media attendance, although commented that this was not a case where he would publish his judgments to TNA because the risk of jigsaw identification was too high.
The applications in this hearing
The hearing was held online for all participants; I think this was because the court building was being renovated. It was a welfare hearing, lasting about three hours, following a fact-finding hearing before the same judge that took place in June.
The applications related to a child, now aged two, who lives with his mother. The father has shared parental responsibility (PR) but hasn’t seen the child for more than a year. There was an interim order for indirect contact. The father had originally applied that the child live with him but at this hearing he had changed this to applying for shared residence (50-50) or at least substantial contact. He’d had a barrister at earlier hearings but was now a litigant in person. The mother was represented by a barrister. There’d been an application by the mother for a non-molestation order. Both sets of proceedings had been going on for more than a year.
The mother was also now applying for a section 91(14) barring order to stop the father making future applications for contact. Unusually, she was applying for this to last until the child turned 18. Commonly, they are made for two or three years. We’ve explained s 91(14) orders here.
The judge emphasised that the orders he was going to make that day were based on the findings of fact he had made at the hearing in June this year. This welfare hearing was not about making any new findings and those contained in his judgment, handed down in July, were only to be referred to today where relevant to the child’s welfare.
The judge listed the relevant law he had taken into account when reading the evidence for today’s hearing. He explained that he wanted the legal framework to be clear to the father because he was a litigant in person.
The ‘spend time with’ (contact) application
The father wanted a child arrangements order for contact, eventually to be regular and unsupervised. He wanted the court to direct a section 7 report to be prepared by Cafcass, but the judge pointed out that this would take about six months to be completed (current waiting times in London) and he therefore needed to be persuaded that extra evidence from a s 7 report would be necessary to enable him to make decisions about the child’s welfare.
The mother’s barrister argued against a s 7 report on the grounds of added delay. As the child is only two, his own wishes and feelings couldn’t be reported to the court. She said that there would be no benefit from ordering a s 7 report – this had already been addressed at earlier hearings – and that the court had already considered two child and family assessments by social workers. The father said that the existing assessments were inaccurate and can’t be relied on. He said that input from an external agency was necessary. The judge said that a s 7 report would just say that the father should attend a course for perpetrators of domestic abuse (an ‘intervention’ as the judge described it.) The father said he would go on a course, but the judge questioned whether he would agree to an intervention because he agreed he’s acted in an abusive way, or because the court wanted him to? The problem was, the judge explained, that the courses would only accept participants who were addressing their behaviour. For example, they tended to use group work which would be disrupted if a participant denied he’d been abusive. (See Comment paragraph below for discussion on this point.)
The mother was asking for an order that was essentially ‘No contact’. The judge asked her barrister why he should make such a order, in the context of the child’s and father’s rights to family life (Article 8) and the presumption that a child should maintain relationships with both parents (Children Act 1989).
The mother’s barrister said that the presumption applies only when there is no unmanageable risk to the safety of the child. She said that because of the findings of serious abuse, the presumption had shifted to the father to demonstrate the benefit of contact. With regard to his behaviour toward the mother and child, he would have to acknowledge and accept his responsibility for this, and show insight and remorse about the impact it has had on the child.
The findings of fact included a range of emotional abuse, including the father telling the mother she should die, and forcing her to ‘write lines’ when she had in his view misbehaved, and physical abuse, including causing injuries such as a broken nose. On one occasion when the child was a baby, he had locked them both out of the house, so she’d had to change the baby in a local community facility. On another, he had locked them out and told the police the child was not his son.
The barrister said that the father continued to deny these findings and had not shown any insight into the impact on the child. She argued that the father hadn’t shown any genuine interest in the child’s welfare. Although he’d had the opportunity of indirect contact, for example, sending the child a birthday card when he turned two, the father instead had turned this into a message blaming the mother for stopping him seeing his son.
The judge pointed out that the father still has PR and therefore at least some form of very limited contact would acknowledge his continued involvement. The barrister said that the evidence overwhelmingly suggests that the father would not use indirect contact as a way of sending loving messages to his son but as a way of continuing abuse toward the mother. The judge however seemed set on the father receiving regular updates from the mother about the child’s welfare, even if there wasn’t to be two-way communication.
When asked about extra evidence the court might need before making final orders, the father referred to medical reports, but the judge replied he’d already seen those in the court bundle.
The judge asked the father how he could make sure that any contact arrangements were safe, as this would have to take place with the help of a third party. He was also concerned about any indirect contact because of the inappropriate birthday card. This had been raised as a concern by a different judge in an earlier hearing. However, the father then said that he didn’t want indirect contact. The judge asked him to be clear about that and then asked how often he would want updates of information about the child. The father said it should be often because it couldn’t do the mother any harm. However, the judge took the view that the father’s default position was to attack the mother and accuse her of being an unfit parent; he said the father needed to move away from this and answer his questions appropriately.
The father said that he wasn’t able to say anything about the Family Court findings because of related criminal proceedings. Neither the barrister nor the judge commented specifically on this as a reason, although they both referred to his position statement in which he hadn’t accepted the findings.
The barring order
The judge asked the mother’s barrister why he should make a s 91(14) order that would last ‘throughout [child]’s minority’ i.e. until he is 18. She submitted that the serious abuse findings and the continuing conduct of the father showed his applications weren’t genuine and that there was no reason to believe he would change in the next two or three years. Section 91(14) is not an absolute bar, so he could challenge it if there was a change of circumstances. The father argued that he wasn’t making vexatious repeated applications so a s 91(14) order would be excessive and unnecessary.
The judge had earlier commented that if he made a s 91(14) order and the mother didn’t comply with providing the information updates set out in an order, that might be a change in circumstances that the father could use to challenge the 91(14) order in the future.
The non-molestation order
The mother was also applying for an extension of a non-molestation order made against the father in July. This protected her and the child from being approached or contacted by the father in a way that would threaten them. She wanted this protection extended to March 2028, which was the date scheduled for the trial of the father on criminal charges of assault against her (yes – the date really is 2028). The father argued that this wasn’t necessary because he hadn’t breached the existing non-molestation order and his bail conditions included a ban on approaching the mother.
This injunction was already in place until July 2026. The judge asked the barrister why it needed to be extended for longer. She submitted that as soon as it ends, the father will begin to harass the mother and that at any time his bail conditions could change.
When the judge asked the father about this, there was quite a bit of discussion about the birthday card and why this could be seen as continuing harassment. In the card (although sent to a two-year old) the father had described himself as having ‘saved someone from Covid and homelessness’ who was now stopping him seeing his son because of ‘a lack of compassion’.
Allegations of judicial bias
The barrister supported her claim that the father didn’t accept the court’s findings by quoting from his position statement in which he had accused the judge of being biased against him. Toward the end of the hearing, the father asked for transcripts of the hearings; he said the judge had ‘assisted the mother’s barrister’ and ‘omitted evidence on purpose’. The judge responded that the father had a right to transcripts but that this was an administrative process and not one he had a part in. He pointed out that the deadline for an appeal against findings in the July judgment had expired.
In his judgment in this welfare hearing, delivered the same day, the judge said that the father had previously made an application that he recuse himself i.e. step down to be replaced by another judge. The judge explained that he had refused that application as there were no grounds for it. He also quoted from the father’s new position statement that the judge’s findings went against the weight of the evidence and that the judge had omitted vital evidence at the June hearing.
Following the judgment being read out, the father asked for permission to appeal on the grounds of bias, the orders not reflecting the evidence, extending the non molestation order although it hadn’t been breached, and concerns that the mother had lied and the judge told her to withdraw an allegation. The judge replied that the father had argued this before, that he (the judge) had reviewed his July judgment and that he had conducted the case in a fair way and not demonstrated bias.
Judgment
The judge listed the applications currently before him and stated that there was no application or offer on either side for indirect contact. He said that it was essential to read his judgment today in the context of the judgment in July.
The judge said that he had taken into account the father had a diagnosis of ‘Asperger’s’ although he’d been given little detail of that. He had followed judicial guidance on enabling parties who were neurodivergent to engage in proceedings. There had been hearings in front of two other judges where concerns had also been recorded on interim orders about the father’s behaviour toward the mother.
The judge concluded that the father was unable to see something from anyone else’s point of view. It was clear from the morning’s hearing that the father still doesn’t think he has done anything wrong. The judge said he continues to show no insight into appropriate contact with the child directly or at all. The judge read out all the findings from a schedule in the July judgment. He said that although the father didn’t accept these and continues to present himself as a victim not a perpetrator, the findings have not been overturned and still stand. With regard to the father’s requests that the court should gather more evidence, this was a matter for judicial discretion (Re C (Children) [2012] EWCA Civ 1489). He already had evidence from the two new position statements, some social services reports and reports by treating clinicians, and police disclosure. He did not need any further evidence from a third party (Cafcass) to help with his risk assessment.
With regard to harm, the judge cited the relevant legislation and the leading Court of Appeal case back in 2000, Re L & others [2000] EWCA Civ 194, as well as Cafcass guidance on domestic abuse, and PD12 J. With regard to s 91(14) he also considered PD12 Q.
The orders made were:
- Twice yearly the mother provide written updates for the father plus provide information of any significant issues at other times about his welfare;
- The non molestation order was extended to March 2028;
- A s 91(14) order was made to take effect until 2040.
As noted above, the father applied for permission to appeal. This was refused by the judge on the grounds that there was no realistic prospect of the father succeeding with an appeal.
Comment
First of all, I suggest this is a helpful example of a case that counteracts perceptions of a ‘pro-contact culture’ in the family courts. Of course, it’s only one case amongst hundreds, very few of which get published or reported.
I thought it was unusual for a non-resident father to apply for direct contact but also say be didn’t want indirect contact. On the one hand, this may have helped the mother’s argument that he had no genuine interest in the child, but it also slightly displaced her argument that he wanted to use contact as a means of continued harassment.
I’ve not come across a s 91(14) order lasting for 15 years before and wonder how common this is. The judge thought that any lesser period would just be a signal to the father to start proceedings again. However, he did hope that the father would reflect on his behaviour and the need to change.
One of the most striking aspects, though, was that both of these parents now have to wait for two and a half years before the father’s criminal trial, when he will be a defendant and she will be a witness. In the meantime, how are they supposed to put all this behind them and move on with their lives? It must have been distressing just sitting through HHJ O’Donovan reading out all his findings of abuse yet again as part of this welfare judgment.
Perhaps in the days when court delays were not so problematic, and when family and criminal proceedings often ran alongside or close to each other, it was logical for an alleged perpetrator to keep to a consistent line of denial. However, where there’s such a huge gap in time between the Family Court making findings and a verdict in a criminal court, this seems to leave a family in limbo. The parent wanting contact may feel it’s impossible to accept the findings for fear of compromising their position in the criminal trial, although continued denial makes it difficult to access the courses that might be a route through to more contact.
I’m not familiar with the current situation in London regarding the availability of courses for domestic abuse perpetrators that were referred to by the judge, and that he said a Cafcass s 7 report considering his findings might recommend. I looked at the Cafcass guidance afterwards and this says that:
the Ministry of Justice decided to replace the existing DAPPs with a new programme designed to better meet the needs of families. The MoJ is currently developing a new programme and details will be shared in future.
The previous DAPP (Domestic Abuse Perpetrator Programme) is no more. The guidance goes on to cover ‘Risk assessment in the absence of DAPP’ so I’m not sure what courses the judge was describing at this hearing.
Finally, it should be noted that although the judge refused the father’s application for permission to appeal (PTA), a further application can be made directly to the High Court for PTA against a decision by a Family Court circuit judge. However, PTA can only be given where an appeal would have a real prospect of success or there is some other compelling reason why an appeal should be heard.
Image: West London Family Court on Google Streetview
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