F (A Child)

Factual and Procedural Background

This opinion concerns an application by the Appellant for permission to appeal against an order made by HHJ Yelton in the Southend County Court on 5 July 2005. The order dismissed the Appellant's application for a residence order in relation to the younger of two children and prohibited further applications to vary residence orders by either party for three years under section 91(14) of the Children Act 1989. Permission to appeal was initially declined but later granted by Mr Justice Hedley, who treated the application as the hearing of the appeal. The dispute involves two boys, with the younger child being the subject of the residence order variation application.

The matter had been previously adjourned in the hope the parties would engage in the Court of Appeal mediation scheme, which did not occur due to financial constraints faced by the parties. Despite ongoing conflict between the parents, the children maintained relationships with both, with residence residing with the mother and extensive contact with the father.

The dispute arose after the younger child refused to return home following a contact visit and made allegations about the mother's care. Reports from the children and family court reporter and an independent expert were obtained shortly before the hearing. The judge refused to adjourn the hearing to allow the parties to consider the latest expert report, proceeding to judgment on the same day.

Legal Issues Presented

1. Whether the residence order in relation to the younger child should be varied.
2. Whether an order under section 91(14) of the Children Act 1989 prohibiting further applications to vary residence orders should be made.
3. Whether permission to appeal against the refusal to vary the residence order should be granted.
4. Whether an application for a joint residence order is excluded by the prohibition order.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573	Guidelines for making orders under section 91(14) of the Children Act 1989, emphasizing the welfare of the child as paramount and the exceptional nature of such orders.	The court applied these guidelines to justify the prohibition on further applications to vary residence orders, recognizing the need for a break from conflict to protect the children from ongoing parental animosity.

Court's Reasoning and Analysis

The court acknowledged the lengthy litigation history and the ongoing conflict between the parents but noted the children maintained relationships with both. It considered expert reports indicating the younger child was vulnerable and adversely affected by parental disputes, with a high risk of emotional and behavioural problems if the conflict persisted.

The judge was entitled to refuse an adjournment despite the late delivery of the expert report, as the report's content was largely uncontroversial except for its concluding sentence. The court found the judge's refusal to adjourn reasonable to avoid prolonging the dispute unnecessarily.

In applying section 1(3)(g) of the Children Act 1989, the judge concluded it was not in the child's best interests to vary the residence order, citing no evidence of untoward care by the mother, the importance of not separating siblings, and the risk of the child exploiting the situation.

The court also considered the section 91(14) order prohibiting further applications to vary residence orders, finding it properly exercised as a measure to protect the children from the strains of ongoing litigation and parental conflict. Although the judge may have misattributed the source of applications, the order was made against both parents and remained valid.

The court observed that an application for a joint residence order, which would not disturb existing arrangements, was not caught by the prohibition and should be considered separately by the County Court judge.

Holding and Implications

Holding: Permission to appeal was GRANTED but the appeal was DISMISSED.

The direct effect is that the existing residence order remains unchanged and the prohibition on applications to vary residence orders continues for three years, except that an application for a joint residence order may be brought. No new precedent was established. The court urged the parties to reconsider mediation, potentially publicly funded, to resolve ongoing disputes without further litigation. The matter of a joint residence order must be returned to the County Court for consideration by HHJ Yelton or another appropriate judge.