P v F [2023] EWHC 2730 (Fam): the importance of PD12B and following procedure for s91(14) orders

In P v F [2023] EWHC 2730 (Fam), the court considered an appeal in relation to indirect contact and a s91(14) order for a period of two years.

The case concerned two children; twins born on 24th October 2011. This was the third set of Children Act proceedings. A welfare report had been ordered, in which Cafcass considered the father to be abusive, lacked insight into his behaviour, with recommendations for contact on an indirect only basis, consideration of a prohibited steps order and a s91(14) order.

The matter was listed for a Dispute Resolution Appointment. At that hearing, there were various exchanges between the father and the Judge. Comments were made by the father that he considered the report to be flawed and wanting direct contact with the children. The Judge made a final order in accordance with the Cafcass Officer’s recommendations.

Permission was granted for the appeal out of time by the President of the Family Division.

In consideration of the appeal, Mr Justice MacDonald highlighted the Child Arrangements Programme under FPR 12B along with parties Article 8 and Article 6 rights. The court reiterated the guidance in relation to s91(14) Children Act 1989 and the most recent case of Re A (Supervised Contact) (s91(14) [2021] EWCA Civ 1749.

Mr Justice MacDonald allowed the appeal. Having considered the transcript, the court was satisfied that the Father was not consenting to a final order and “in circumstances where the applicant did not agree to an order providing for no direct contact and challenged the CAFCASS report, the hearing was conducted in breach of his right to a fair trial under Art 6(1) of the ECHR and the procedural protections afforded by Art 8 of the ECHR” (paragraph 38).

“Where a party continues to dispute the outcome of the proceedings at the Dispute Resolution Hearing, PD12B provides a clear way forward, either in the form of hearing evidence at the Dispute Resolution Appointment in order to resolve or further narrow the issues or in the form of final case management directions towards a final hearing. Given the contents of the Cafcass report in this case, the judge was entitled to express the views he did regarding the difficulties faced by father on his case. However, in circumstances where it was apparent that the father disputed the recommendations of the Cafcass report, continued to seek direct contact with the children and, albeit in somewhat opaque terms, sought a final hearing, the proper course was to make tight case management directions to a short final hearing, in particular identifying and specifying the key issues to be determined at that final hearing and on which the court would wish to hear limited evidence” (paragraph 41).

In this case, the father indicated to the court that he disputed the report and the conclusions, wanting direct contact. “In the circumstances, the father was deprived of the proper opportunity to comment on the key piece of evidence on which the court based its decision and to make submissions on the proper outcome of the proceedings more widely” (paragraph 44).

In relation to the s91(14) order, “at no point did the judge inform the father that he was considering making an order under s.91(14) of the 1989 Act or seek to explore with him whether the father understood the meaning and effect of such an order……. In all the circumstances, the procedure adopted by the judge failed to follow that stipulated by FPR PD12B and PD12Q and the principles set out in the authorities. In short, none of the procedural requirements necessary to establish a fair process with respect to a litigant in person where an order under s.91(14) is contemplated were followed at the Dispute Resolution Hearing.” (paragraph 46).

The case reiterates the need for the court to properly conduct a Dispute Resolution Appointment and further the importance of the guidance when making any orders under s91(14).