T-D (Children: Specific Issue Order)

Factual and Procedural Background

This appeal concerns two children, aged 9 and 5, who currently divide their time equally between their separated parents. The mother appeals from an order granting the father overriding parental responsibility in respect of schooling, therapy, and interactions with social workers and medical professionals. The order, effective until the children reach 16, allows the father to determine these issues in the event of disagreement, while still requiring consultation with the mother on significant events. The order does not preclude either parent from making further applications to the court.

The parents separated in July 2020 following an acrimonious breakdown. The children initially lived with the mother, spending time with the father fortnightly. The father remarried in June 2023. The post-separation period has involved continuous litigation and conflict, including care proceedings initiated by the local authority due to concerns about emotional abuse and the mother's controlling behaviour. The children have been subject to Child in Need and Child Protection plans. The local authority sought interim removal of the children from the mother, but these applications were refused. By early 2023, the children spent five nights a fortnight with the father.

A dispute arose over the younger child's schooling, with the mother and father preferring different schools. The older child was due to start middle school in September 2024, making the schooling issue urgent. There was also concern about the mother's cooperation with therapy and access by social workers.

The final hearing took place in February 2024 before the Judge. Evidence was heard from social workers, psychologists, the parents, the father's wife, and the Guardian. The local authority proposed the children move to the father's care with supervision; the father supported this plan; the mother sought to maintain primary residence; and the Guardian recommended shared care with the father having final decision-making power on unresolved issues. The Judge made a 'lives with' order for equal shared care, a 12-month supervision order, and the specific issue order now under appeal. The Judge emphasized the mother's controlling behaviour and lack of trustworthiness in disputes, contrasted with the father's trustworthiness, as justification for the order.

Legal Issues Presented

1. Whether the Family Court had the power to make the specific issue order granting overriding parental responsibility to the father (Ground 1).
2. Whether the making of the specific issue order was wrong in the circumstances of this case (Ground 2).

Arguments of the Parties

Appellant's Arguments

• The specific issue order was an inappropriate and disproportionate delegation of overriding parental responsibility.
• The Judge’s brief reasoning did not justify such an unusual order, and lack of trust in the mother was insufficient.
• The order conflicted with the normal expectation of equality and cooperation under shared care.
• The order was unlimited in time, which was improper.
• The order’s lack of specificity, including the use of "etc.", made it unworkable.
• The court should have made its own decision on schooling rather than delegating it to the father, citing Re P (Parental Dispute: Judicial Determination).

Respondent Local Authority's Arguments

• The Judge’s findings about the mother’s obstructive behaviour and lack of trust justified the order.
• The order was made after judicial determination, not before, distinguishing it from Re P.
• The Judge was entitled to choose the form of order made, even if specific orders on schooling, therapy, and professional access could have been made.

Respondent Father's Arguments

• The order, though unusual, was legally available and justified to avoid further conflict.
• The mother was unlikely to change her approach, but the order could be varied if she did.
• The order could have been more detailed, but any drafting would have been criticised by the mother.
• The father emphasized the seriousness of the situation and the need for court support to resolve ongoing disputes, particularly about schooling and holiday contact.

Respondent Guardian's Arguments

• The order had profound and beneficial implications for the children’s welfare by enabling the father to make decisions on longstanding disputes.
• The order aimed to protect the children from the harmful effects of continued litigation.
• The mother had been found responsible for domestic abuse and misuse of parental responsibility.
• The order was unusual but understandable given the evidence and was clear in its terms.
• It was not possible to specify an end-date for the order.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re P (Parental Dispute: Judicial Determination) [2002] EWCA Civ 1627; [2003] 1 FLR 286	Judicial determination is required on disputed issues rather than delegating final decision to one parent.	Court held that delegating final decision to one parent was an abdication of judicial function; order under appeal conflicted with this principle.
Re H (A Child: Parental Responsibility) [2002] EWCA Civ 542	Parental responsibility can be limited in specific domains where justified; court may exclude a parent from particular decisions.	Distinguished from Re P; court may regulate exercise of parental responsibility but must do so with evidence and proportionality.
A v A (Shared Residence) [2004] EWHC 124 (Fam); [2004] 1 FLR 1195	Shared residence orders expect parents not to interfere with each other's care during their respective times.	Emphasized parental cooperation; relevant to context of shared care and parental responsibility.
Re P (Shared Residence Order) [2005] EWCA Civ 1639; [2006] 2 FLR 347	Shared residence orders reflect equality of parents and expect cooperation; good reasons required to refuse such orders.	Supports principle that shared care requires cooperation and equality in parental responsibility.
P v D [2014] EWHC 2355 (Fam)	Prohibited steps orders can restrict a parent's exercise of parental responsibility in exceptional cases.	Illustrates the exceptional nature of restricting parental responsibility.
H v A (No 1) [2015] EWFC 58	Prohibited steps orders must be based on objective evidence and be proportionate; parental responsibility cannot be revoked but exercise can be restricted.	Reinforces high threshold and proportionality required for restricting parental responsibility.
In re B and C (Children) [2017] EWHC 3250 (Fam); [2018] 4 WLR 19	Orders depriving a parent of parental responsibility or restricting it must be based on a solid evidential basis and be in the best interests of the children.	Used to illustrate rarity and gravity of orders removing parental responsibility; court found no justification for such an order here.
His Highness Sheikh Mohammed Bin Rashid Al Maktoum v Her Royal Highness Princess Haya Bint Al Hussein [2021] EWHC 3480 (Fam); [2023] 1 FLR 12	Extreme cases justify sole responsibility orders to protect children from harm caused by controlling parent.	Confirmed existence of power to make unusual orders; distinguished from present case by severity of facts.
Re A (Parental Responsibility) [2023] EWCA Civ 689	Combination of prohibited steps and specific issue orders can effectively control and limit a parent's exercise of parental responsibility.	Confirmed scope of court’s powers; cited to show that orders removing or limiting parental responsibility are exceptional.
Re P (Terminating Parental Responsibility) [1995] 1 FLR 1048	Parental responsibility can be terminated in exceptional circumstances involving serious harm.	Referenced as example of removal of parental responsibility in extreme cases.
C v D and B (A Child) [2018] EWHC 3312 (Fam)	Parental responsibility can be removed where a parent obstructs professional support and threatens others.	Used to illustrate the rare use of section 4(2A) to remove parental responsibility.

Court's Reasoning and Analysis

The court accepted the Judge's findings of fact regarding the intense parental conflict, the mother's controlling and obstructive behaviour, and the father's trustworthiness. The Judge's overall approach, including the child arrangements and supervision orders, was not challenged. The central issue was whether the specific issue order delegating overriding parental responsibility to the father was a proper and proportionate remedy.

The court concluded that the order was not reasonably open to the Judge for several reasons:

• The order was unlikely to be effective because it invited interpretative disputes and allowed the mother to contest any decision by application to the court, undermining clarity and stability.
• The issues of residence and schooling were interconnected, and the court was obliged to resolve both. Delegating the schooling decision to the father without judicial determination was improper, especially given the high conflict and the importance of schooling to the children.
• The evidential basis for excluding the mother from schooling decisions was lacking, as both parents were genuinely interested and the mother had relevant professional expertise. The father's preference was influenced by his new family circumstances, making delegation inappropriate.
• The order was unnecessary and disproportionate. There was no precedent for depriving a fully engaged carer of significant elements of parental responsibility indefinitely. Conventional specific issue and prohibited steps orders would have been more appropriate, providing clearer protection and possibly improving the chances of shared care.

The court emphasized that while strong measures were necessary to address the mother's behaviour, the specific issue order as drafted was not justified. The court highlighted the need for orders to be proportionate, clear, and effective in promoting the children's welfare.

Holding and Implications

The court's final decision was to allow the appeal on Ground 2 and to dismiss the appeal on Ground 1. The matter was remitted to the original Judge for urgent determination of the schooling issue and for him to make any further appropriate orders in light of the court’s judgment.

The order granting the father overriding parental responsibility in the specified areas was set aside insofar as it concerned schooling, therapy, and professional access, pending the Judge's reconsideration. The court maintained the overall regime prescribed by the Judge but required a more focused and effective approach to decision-making on these issues.

No new precedent was established beyond reaffirming that orders delegating overriding parental responsibility to one parent must be justified by clear evidence, be proportionate, and not abdicate the court’s judicial function. The decision underscores the necessity of judicial determination in high-conflict parental disputes, particularly regarding schooling, and the importance of clarity and proportionality in court orders affecting parental responsibility.