This private law appeal, decided by Mr Justice Harrison, caught my eye as it had similarities to the public law case of Re H (Final Care Orders at IRH) [2025] EWCA Civ 1342 – which happened to involve Liam Sullivan, Jessica Hunter and Daniel Proctor from Trinity Chambers. By that, I note the question before the court is, when is it appropriate for the court to dismiss a parties application in Children Act proceedings?

The question in R v P was whether the court was right to terminate the father’s application for contact with G at a one-hour directions hearing which followed a fact-finding hearing, making an order which limited him to indirect contact and imposing a restriction on the making of further applications pursuant to section 91(14) of the Children Act 1989.

The court confirmed that there was power to terminate the father’s application for contact as was previously re-affirmed in the Court of Appeal in Re A, B and C (Child Arrangements: Final Order At Dispute Resolution Appointment) [2025] EWCA Civ 55, where Baker LJ considered the court’s ability to make a non-consensual order at a Dispute Resolution Appointment (‘DRA’) and summarised the position at [44] as follows:

“Even where the parties are unable to reach an agreement, the court has the
power to bring the proceedings to an end if satisfied that such a course is
consistent with the welfare of the children, which under s.1 of the 1989 Act is
the paramount consideration whenever the court is determining any question
about the children’s upbringing”

In support of that conclusion, Baker LJ referred to the judgment of Sir James Munby, P
in Re C (Children) (Residence Order: Application being dismissed at the Fact
Finding Stage) [2012] EWCA Civ 1489, where the Court of Appeal dismissed an appeal
against a judge’s decision reached after an abbreviated hearing of the evidence. The
former President observed:

“14. … It has long been recognised – and authority need not be quoted for this
proposition – that for this reason a judge exercising the family jurisdiction has
a much broader discretion than he would in the civil jurisdiction to determine
the way in which an application of the kind being made by the father should be
pursued. In an appropriate case he can summarily dismiss the application as
being, if not groundless, lacking enough merit to justify pursuing the matter. He
may determine that the matter is one to be dealt with on the basis of written
evidence and oral submissions without the need for oral evidence. He may, as
Judge Cliffe did in the present case, decide to hear the evidence of the applicant
and then take stock of where the matter stands at the end of the evidence.

15. The judge in such a situation will always be concerned to ask himself: is
there some solid reason in the interests of the children why I should embark
upon, or, having embarked upon, why I should continue exploring the matters
which one or other of the parents seeks to raise. If there is or may be solid
advantage in the children in doing so, then the inquiry will proceed, albeit it
may be on the basis of submissions rather than oral evidence. But if the judge is
satisfied that no advantage to the children is going to be obtained by continuing
the investigation further, then it is perfectly within his case management powers
and the proper exercises of his discretion so to decide and to determine that the
proceedings should go no further.
…
18. It is pre-eminently a matter for the trial judge in a case of this sort to
determine the form of procedure which will best meet the welfare needs of the
children. A judge is not obliged, merely because one parent or the other wishes
him to do so, to listen to evidence if it has become apparent to him that the
process is not going to be of any advantage to the children. That was the view
Judge Cliffe took. It was a robust view, but it is quite impossible, in my
judgment, to assert that the judge, in taking that view and adopting that
approach, exceeded the generous ambit of discretion which the law conferred
upon him as the trial judge.”

Back to the case in hand, Mr Justice Harrison went through the background to the case, which will not be set out here. One interesting point: the judge at first instance directed the mother and the father to file statements of evidence limited to 5 pages, setting out their response to the court’s findings of fact. This is what Mr Justice Harrison had to say about this course of action “ In accordance with the judge’s directions, each of the parties filed short statements responding to the fact-finding judgment. Although I have not heard argument on this specific issue, I have some reservations about the utility of this course. If, in the aftermath of a judgment, a party files a statement accepting all of a judge’s findings against them, this must surely give rise to questions about whether that acceptance is sincere or whether it has merely been proffered to appease the court. For the father to come to a genuine acceptance of findings made about his conduct is likely to require more than the filing of a statement and to entail some form of specialist work.”

Of note, both the court at first instance and the appeal court found the father’s statement to say one thing but mean another. Ie, the court took the view that the father was not really accepting the findings, despite having asserted that he did. The father’s appeal was effectively that the court’s decision on the contact application was procedurally irregular and wrong.

Ultimately, despite sympathy for the mother’s submissions, the court allowed the appeal. The reasons for allowing the appeal were multifaceted, but if I may draw from one of the conclusions from the judgment. At paragraph 69 of the judgment, the court said as follows “I am unable to accept Ms Whelan’s submission to the effect that the court should not waste its resources for the benefit of a father who has refused to accept its findings. It must not be forgotten that whatever faults he may have as a father, it is the child who has a right to have a relationship with him, provided it can safely be achieved. She, and not the father, is the court’s focus. The court should not lightly cast aside the long-term significance for her welfare of growing up without any meaningful relationship with her father or potentially even knowledge of him”

In short, although the court has the power to conclude matters at a DRA hearing, on this occasion, for the reasons set out in the Judgment of the court, this approach was approved of on the facts of the case.

William Green
Trinity Chambers