Factual and Procedural Background
The proceedings concern private children’s matters involving three daughters aged 11, 9, and 7, whose parents separated after a marriage in Ireland and subsequent relocation to England. The father initiated divorce proceedings in 2019, during which the mother sought to relocate with the children to Ireland. The father applied for child arrangements orders and a prohibited steps order to prevent removal of the children from the jurisdiction. The mother counter-applied for a specific issue order permitting relocation.
Following case management, an independent social worker (ISW) produced a s.7 report recommending refusal of the mother’s relocation application and a shared care arrangement. A contested hearing in 2019 resulted in a shared care order dividing time equally between parents with specific provisions regarding collection of the children from school.
Further applications for variation were made by both parents in 2020, accompanied by a second s.7 report prepared by a new ISW after the first ISW’s death. The second report identified behavioural and social difficulties, recommended refusal of relocation, and maintenance of shared care with minor adjustments. A three-day hearing in 2021 upheld the shared care order and dismissed the mother’s relocation application.
In 2023, the mother sought disclosure of parts of the 2019 order to the children’s school and filed further applications for variation. The father applied for a s.91(14) order restricting the mother’s ability to make further applications without court leave. A Dispute Resolution Appointment (DRA) was held before a deputy district judge who dismissed the mother’s applications, varied the child arrangements order, refused a further s.7 report, and granted the s.91(14) order for three years.
The mother appealed the deputy district judge’s order. Permission to appeal was granted, and a first appeal hearing was held in July 2024. The appeal court upheld the deputy district judge’s decisions. Subsequently, the mother filed a second appeal, which was also dismissed by the court.
Legal Issues Presented
- Whether the deputy district judge erred in summarily dismissing the mother’s application to vary the child arrangements order and refusing to order a further s.7 report in light of alleged material changes in the children’s circumstances.
- Whether the court was correct to rely on outdated evidence of the children’s wishes and feelings rather than obtaining updated evidence pursuant to s.1(3) of the Children Act 1989.
- Whether the deputy district judge was wrong to make adverse findings or observations about the mother’s conduct without giving her notice or an opportunity to respond with evidence.
- Whether the refusal to disclose parts of the 2019 and 2021 orders to the children’s school was legally justified.
- Whether the making of a s.91(14) order restricting the mother’s ability to make further applications was appropriate and proportionate, given the evidence and safeguarding concerns.
Arguments of the Parties
Appellant's Arguments
- The deputy district judge erred in dismissing the mother’s application without ordering a s.7 report despite evidence of a material change in the children’s welfare needs, including diagnoses of coeliac disease and autism spectrum disorder and school exclusion.
- The judge failed to properly consider the children’s current wishes and feelings and relied on outdated evidence from previous proceedings when the children were younger.
- The mother was unfairly characterised and criticised without being given a fair opportunity to respond or cross-examine, particularly regarding allegations of “weaponising” evidence and engaging in “lawfare.”
- The refusal to allow disclosure of the recital from the 2019 order to the school was contrary to the children’s welfare interests and the school’s request.
- The s.91(14) order was disproportionate, made without proper consideration of the mother’s conduct, and failed to reflect that previous applications had been reasonable and genuine attempts to promote the children’s welfare.
Respondent's Arguments
- There had been two sets of fully contested proceedings in the prior four years with detailed findings supporting the existing shared care arrangements, and no material change of circumstances justified reopening the case.
- The deputy district judge properly exercised case management powers and was entitled to refuse a further s.7 report as unnecessary and potentially harmful given the children’s welfare and prior investigations.
- The judge’s observations about the mother were properly based on extensive evidence from previous hearings and the current case material, and were appropriately described as judicial observations rather than formal findings.
- The refusal to disclose the recital was consistent with the original order’s intent and the mother’s application was misconceived.
- The s.91(14) order was justified by the mother’s repeated and unreasonable applications amounting to “lawfare,” and was necessary to protect the children from ongoing litigation harm.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Re C (Children) (Residence Order: Application being dismissed at the Fact Finding Stage) [2012] EWCA Civ 1489 |
Case management discretion in family proceedings; summary dismissal of applications where no solid advantage to children is to be gained by further inquiry. |
Supported the court’s discretion to summarily dismiss the mother’s application without further investigation when no material change in circumstances was found. |
| Re P (A Minor) (Residence Order: Child's Welfare) [2000] Fam 15 |
Guidance on s.91(14) orders restricting applications to protect children and parties from vexatious litigation. |
Reinforced the appropriateness of the s.91(14) order to protect the father and children from the mother’s repeated litigation. |
| Re A (A Child) (Supervised Contact) (s91(14) Children Act 1989 Orders) [2021] EWCA Civ 1749 |
Use of s.91(14) orders as protection against “lawfare” or coercive litigation tactics in family cases. |
Applied to justify the s.91(14) order based on the mother’s conduct amounting to “lawfare.” |
| DP v PC [2017] EWHC 2387 (Fam) |
Res judicata and case management principles discouraging re-litigation absent significant change in circumstances. |
Supported the conclusion that no further investigation was warranted absent material change since previous contested hearings. |
| K v K [2022] EWCA Civ 468 |
Proper approach to fact-finding hearings in private children proceedings; fact-finding only justified where findings are relevant to future arrangements. |
Supported the court’s refusal to order further fact-finding or s.7 report as unnecessary for the issues before the court. |
| Re B (Children Act Proceedings) (Issue Estoppel) [1997] 1 FLR 285 |
Limits on strict issue estoppel in children cases; judicial discretion in case management. |
Clarified that while res judicata is not strictly binding, courts may decline further hearings where appropriate, consistent with case management powers. |
Court's Reasoning and Analysis
The court analysed the case within the framework of the paramount welfare principle under s.1 of the Children Act 1989 and the case management powers under the Family Procedure Rules. It emphasised the importance of stability for the children and the need to avoid unnecessary professional intervention or repeated litigation that could harm the children’s welfare.
The court found that the deputy district judge had properly considered the extensive written evidence, prior contested hearings, and safeguarding reports before concluding that no material change in circumstances justified a further s.7 report or a full hearing. It accepted that the children’s wishes and feelings had been previously ascertained and that the narrow issue of time division was primarily an adult decision in which children’s wishes are a part but not determinative.
Regarding adverse observations about the mother, the court held that these were judicial views based on evidence and prior findings, not formal findings requiring a separate hearing or cross-examination. The court stressed that judges must be able to express views on the character of a case and witnesses without undue procedural burdens, provided the views are evidence-based.
The court upheld the deputy district judge’s interpretation of the 2019 order recital and the refusal to disclose it to the school, noting that the mother’s application was misconceived given the original order’s intent.
On the s.91(14) order, the court found that the mother’s repeated applications and evidence-gathering tactics constituted “lawfare,” justifying the order to protect the children from ongoing litigation and to provide respite. The court noted that such orders are no longer a last resort but a discretionary tool to safeguard welfare.
The court also addressed procedural points, including the non-necessity of a fact-finding hearing absent sufficient relevance to the children’s welfare and the limited weight to be given to observations made when granting permission to appeal.
Holding and Implications
The court DISMISSED the second appeal, thereby upholding the deputy district judge’s orders including the refusal to order a further s.7 report, the variation of the child arrangements order, the refusal to disclose the recital to the school, and the imposition of the s.91(14) order restricting the mother’s ability to make further applications without leave.
The direct effect of this decision is to maintain the existing shared care arrangements and to limit further litigation initiated by the mother without court permission, providing stability and respite for the children. The court did not establish any new legal precedent but reaffirmed established principles regarding case management discretion, the use of s.7 reports, fact-finding hearings, and s.91(14) orders in private children proceedings.