AEY v AL (Family Proceedings: Civil Restraint Order), Court of Appeal - Family Division, November 19, 2018,  EWHC 3253 (Fam)
|Resolution Date:||November 19, 2018|
|Issuing Organization:||Family Division|
|Actores:||AEY v AL (Family Proceedings: Civil Restraint Order)|
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Case No: 2018/0088
Neutral Citation Number:  EWHC 3253 (Fam)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE MRS JUSTICE KNOWLES
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This application was determined on the papers.
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JUDGMENTMrs Justice Knowles:
This decision is concerned with multiple applications for permission to appeal by AEY, the father of two girls, the first being S (now aged 18 years) and the second being N (now aged 12 years). Until her eighteenth birthday, S was the subject of a care order and N lives with her mother.
I have decided that none of the applications for permission to appeal should be granted and I have also decided that all of them are totally without merit. Additionally, I have decided that I should make an extended civil restraint order preventing AEY from making any further application concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made without first seeking permission to do so. This order will be for a duration of two years in the first instance. Any application for permission pursuant to that order will be made to me.
I have case managed these seven applications for permission to appeal and determined that all of them should be determined together. On 31 July 2018 I also gave AEY an opportunity to address me in writing about whether I should make a civil restraint order in respect of him. I have read all the voluminous papers submitted by AEY which filled two cardboard boxes, many of which had no bearing on any of the applications for permission to appeal. I have also considered a number of written submissions from AEY.
This decision will consider each application for permission to appeal in turn and will then address the making of an extended civil restraint order. Given that the applications for permission arise in the context of a significant history of private and public law proceedings, there is some inevitable cross-over in the subject matter of the appeals. My approach has been to consider the merits of each application and decide whether permission to appeal should be granted. However, the similarities between each application were marked and that has been of relevance when I came to determine whether a civil restraint order should be made in respect of the father.
I have referred to AEY as ``the father'' in the remainder of this ruling and to the Respondent as ``the mother''. The Family Procedure Rules 2010 are referred to as ``the Rules''.
This is a sad, if not a tragic, case where the father has pursued litigation in relation to his daughters beyond reason and almost without restraint. His litigation conduct, as evidenced in these seven applications for permission to appeal, appears to be driven by a conviction that he alone is right and by a desire to punish the mother of his children. The dreadful allegations he made about her as well as about the judge who had to determine matters at first instance required a robust response from this appellate court.
Appeals: The Court's Approach
The role of the appellate court and its approach to applications for permission to appeal are determined by the provisions of the FPR and by case law. The test for granting permission is set out in FPR rule 30.3(7) and provides that:
a) There is a real (realistic as opposed to fanciful) prospect of success, and
b) There is some other compelling reason to hear the appeal.
FPR rule 30.12(3) provides that an appeal may be allowed where the decision was wrong or unjust for procedural irregularity.
In Re F (Children)  EWCA Civ 546, Munby P summarised the approach of an appellate court to decisions of the lower court as follows:
``22. Like any judgment, the judgment of the Deputy Judge has to be read as a whole, and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law. To adopt the striking metaphor of Mostyn J in SP v EB and KP  EWHC 3964 (Fam),  1 FLR 228 para 29, there is no need for the judge to ``incant mechanically'' passages from the authorities, the evidence or the submissions, as if he were ``a pilot going through the pre-flight checklist.''
The task of this court is to decide the appeal applying the principles set out in the classic speech of Lord Hoffmann in Piglowska v Piglowski  1 WLR 1360. I confine myself to one short passage (at 1372):
``The existences of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case... These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.''
It is not the function of an appellate court to strive by torturous mental gymnastics to find error in the decision under review when in truth there has been none stop the concern of the court ought to be substance not semantics. To adopt Lord Hoffmann's phrase, the court must be wary of becoming embroiled in ``narrow textual analysis''.''
I remind myself that my judicial duty is to identify the essential elements of the case and to deliver reasons which enable the parties to understand why I have reached the conclusions and made the orders I have. The overriding objective in FPR rule 1.1 applies as much to the appeal process as to other applications under the FPR and I must therefore seek to determine this application justly but also proportionately.
Summary of Background
Before I consider each of the applications for permission to appeal, it is important that I set out something of the background against which these applications for permission are to be determined.
In addition to S and N, the father and mother have an older daughter A who is now 21 years old. All three girls have been the subject of applications to the family court by the father who sought either that his daughters should live with him or that he should have very substantial contact with them. As far as I can ascertain from the two large boxes of papers comprising these seven applications, these legal proceedings began in 2013. The precipitating event was in February 2013 when S was taken into voluntary care by the local authority. The local authority had been involved with the family since 1999 but concerns about S's behaviour increased in 2012. It was said that she had physically attacked her mother and her sisters. She was thought to be a danger to both others and to herself (by reason of self-harm). S's departure from the family home was followed by an incident in April 2013 when the father assaulted the mother. He left the family home and did not return. I note from the judgment of District Judge Simmonds given on 19 December 2013 that in October 2013 the father was convicted of that assault on the mother. He also has a conviction in 1992 for conspiring to take a child out of the United Kingdom without the appropriate consent of the child's carer and was sentenced to 12 months' imprisonment.
District Judge Alderson determined a variety of applications concerning the children and I have read the transcript of the judgment given on 30 July 2014. It is noteworthy that the judgment details the father's vociferous refusal to accept the fact of his convictions for assault and child abduction and his belief that the local authority social workers and the police had sided with the mother and had lied so as to mislead in support of her case. The judge recorded A's desire to live with her mother in circumstances where she appeared to be unwilling to have any contact with her father and made no orders with respect to her. The social work evidence was that S was settled with foster carers and did not wish to see either of her parents or her sisters. Though she was accommodated pursuant to s.20 of the Children Act 1989, the local authority indicated that, if the consent to s.20 accommodation was revoked, it would issue care proceedings in respect of S. The judge made no orders with respect to S. He recorded that the mother believed the children should see their father and had facilitated his contact. He decided N should live with her mother and continued the prohibited steps order preventing the father from removing N from the jurisdiction. He ordered weekly contact between N and her father for three hours each week alongside telephone contact whenever N...
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