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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> M, Re (Extension of Extended Civil Restraint Order) [2024] EWFC 375 (10 December 2024) URL: http://www.bailii.org/ew/cases/EWFC/HCJ/2024/375.html Cite as: [2024] EWFC 375 |
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Strand, London, WC2A |
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B e f o r e :
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| In the matter of Re M (Extension of Extended Civil Restraint Order) |
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Hearing dates: 10th December 2024
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Crown Copyright ©
Williams J:
It is ordered that you be restrained from issuing claims or making applications in any court specified below [any court] concerning any matter involving or relating to or touching upon or leading to the proceedings in which this order is made without first obtaining the permission of The Honourable Mr Justice MacDonald.
[13] Mr M [ ] was clearly dissatisfied with the course of the proceedings under the Children Act 1989 and remains so. As I have noted, both prior to and following the judgment of DJ(MC) Carr, Mr M [ ] launched multiple sets of litigation aimed at those he considers to be responsible for what he considered, and considers, to be a miscarriage of justice in the family proceedings. Primarily, Mrs M[ .], Mr Ireland and Dr Hellin. At times, the litigation pursued by Mr M [ ] has also touched others involved in the proceedings. The litigation ancillary to the family proceedings pursued by Mr M[ ] has ranged across actions in defamation against the mother, the maternal family and the mother's General Practitioner, applications for non-molestation orders against the mother, civil actions in the Kings' Bench Division for "fraud and deception" against the mother, Mr Ireland and Dr Hellin (albeit it is not entirely clear whether those actions were ever in fact issued), an application for committal for contempt against Dr Hellin, and proceedings under the Protection from Harassment Act 1997 against Mr Ireland. Most recently, Mr M [ ] has issued a C2 application form naming Mr Ireland as the respondent and which seeks to "deem the evidence of an unregulated court expert as inadmissible" in the now concluded family proceedings. Mr M [ ] has also made complaints to the Solicitors Regulation Authority, the Information Commissioner, the Charities Commission, the British Psychological Society and to Members of Parliament
[15] On 28 October 2021, Mr M [ ] applied to commit Dr Hellin for contempt of court, before replacing that application with a revised application against Dr Hellin on 15 February 2022 following the loss of his appeal on 27 January 2022. That latter application was dismissed by Deputy Circuit Judge Jordan on 24 February 2022 as totally without merit. Mr M [ .] appealed that decision to the High Court, which appeal was dismissed by Mrs Justice Arbuthnot on 7 April 2022, again as being totally without merit.
[66] In contrast to the failure, as identified above, to provide in his statements a particularised and detailed account of the alleged contempt, the statements provided by Mr M [ .] contain highly detailed and involved descriptions of the manner in which Mr M [ .] considers he has been wronged in the family proceedings and highly detailed descriptions of the mistakes and omissions he considers were made by professionals and the court in the family proceedings. In his statement dated 6 June 2022, filed ostensibly in support of the application to commit, Mr M [ ] ranges across the conduct of the judges who dealt with the proceedings, the instruction, by consent, of Dr Hellin to provide an expert psychological assessment and the alleged adverse role in the family proceedings played by Mr Ireland. As the statements provided by Mr M [ ] progressed, including that in support of his latest C2 application, they moved even further away from the objects of ensuring compliance with a court order or seeking to bring to the attention of the court a serious contempt and towards an increasingly acute preoccupation with the role of Mr Ireland and Dr Hellin in the outcome of the family proceedings. The statement in support of the latest C2 application issued by Mr M [ ]evidences, Mr M[ ]'s view that he needs to stop what he considers is Mr Ireland's pernicious influence in the family proceedings:
Having regard to the evidence before the court is beyond dispute that Mr M[ ] has persistently made applications which are totally without merit, seeking to repeatedly to re-litigate in other arenas issues from the family proceedings which have been decided. Those applications include the appeal against the orders of DJ(MC) Carr dated 1 July 2021, the application to commit Dr Hellin dismissed as totally without merit on 24 February 2022 and the appeal against that decision, dismissed by Arbuthnot J as totally without merit on 7 April 2022. Further, Mr M [ ] has indicated before this court his intention to launch yet further litigation against Mr Ireland in the King's Bench Division. Within this context, I am entirely satisfied that it is appropriate in this case to make an extended civil restraint order for the maximum initial period of two years.
i) 28 May 2023: Mr M's application for a non-molestation order against the mother.
ii) 19 July 2023: Mr M's application for the discharge of the non-molestation order made against him
iii) 6 February 2024: Mr M's application for permission to issue an application for permission to appeal against the order of 1 July 2021 in proceedings MA19P02184.
iv) 23 May 2024: Mr M's application to discharge the Family Law Act order of 1 July 2021.
v) 19 June 2024
a) MA 23P02471: Mr M's application dated 18 March 2024 for permission to issue an application under CPR Pt 8 in the KBD for disclosure of documents relating to the instruction of an expert. This
b) MA21F00014: Further application dated 2 February 2024 to discharge NMO of 1.7.2021
c) MA23P02184: Application dated 16 January 2024 for permission to issue an application for permission to apply for judicial review.
" the applicant is again seeking to re-open and re-litigate the issues determined in, inter alia, the proceedings numbered MA19P02184/ MA21P01785."
The first four grounds set out in the skeleton allege that Dr. Hellin has an undisclosed conflict of interest as she knows the respondent. Both Dr. Hellin and the respondent failed to disclose this. Dr. Hellin's report was unsatisfactory because she repeated dishonest facts stated by the respondent and the order was unlawful as it was obtained by fraud and deception, added grounds that the District Judge's case management decisions were unfair and did not allow for a factual matrix.
i) The facts upon which the ECRO was made were "misstated" to the judge. The judge was not aware of the significant procedural irregularities that had taken place. However, the person who pursued the ECRO was undoubtedly aware of what had happened.
ii) A recording of the hearing of the cross examinations in the case is "missing and cannot be found".
iii) There was also an unlawful and groundless application for a non-molestation order made by a Solicitor who made the application with intent to corrupt the Children Act Proceedings. This is the Solicitor who pursued the ECRO being imposed.
In dismissing the application Moylan LJ identified that procedural irregularities in the proceedings that the ECRO was imposed in are not relevant to whether the judge was entitled to make an ECRO; that a missing transcript was also not relevant to the making of the ECRO and a groundless application for an Non Molestation Order made by the solicitor who sought the ECRO was an immaterial and irrelevant matter.
i) MA24P01307: on Mr M's application for permission to issue an application for a child arrangement order she refused the application as being totally without merit. She reviewed the initial judgment of DJ Carr and said this
Mr M [ .] has not advanced a case that he has changed. In fact, his conduct during the currency of the ECRO outlined above suggests entirely otherwise. Moreover, his repeated attempts to appeal or otherwise undermine the basis of DJ Carr's order suggest that he has not gained insight into his own behaviour or taken on board the contents of the July 2021 judgment. I note that the C100 application was made within days of the 91(14) order expiring. The Father's aspiration that [the child] should be reunited with him coupled with his application for a lives with order suggests that Mr M [ ] intends once more in new children litigation to undermine the previous orders made by DJ Carr in July 2021. I am fortified in coming to that conclusion by perusal of the judgment of MacDonald J reported as M [ ] v Ireland (Striking out Proceedings for Contempt) [2022] EWFC 113 which evidence a relentless campaign by Mr M [ ] to right the perceived wrongs of the family court's decision in July 2021. The history resulted in Mac Donald J making the ECRO which remains in force today.
ii) On the issue of the extension of the ECRO she directed Mr M to provide submissions limited to 5 sides of A4 paper as to whether the order should be extended.
Submissions
i) The underlying proceedings in which the ECRO was imposed have suffered with a significant procedural irregularity which is catastrophic to the safety of any order subsequently made including the ECRO.
a) Missing critical transcript (June 2021);
b) No CVs provided before expert appointment;
c) FPR PD 25C requirements not followed;
d) Fact-finding hearing wrongfully denied;
e) Expert, Kate Hellin and Respondent, the mother having an alleged prior connection.
ii) The appeal that was one of the applications that were cited as meritless did not consider the above significant procedural irregularity. Additionally, there is an extant application for permission to appeal with the grounds of the above significant procedural irregularity.
iii) A judge sufficiently involved in the unsafeness of the proceedings had significant findings by the JCIO made against him, this after collusion between a lawyer involved with that Judge.
iv) The lawyer that sought the ECRO being imposed which seemingly was only to put a lid on the impropriety now has restricted practice imposed on him by his regulator for financial irregularities and this after a prosecution for the same in 2020 and this after a rebuke by the SRA in 2016.
v) A recording of the only evidential hearing (including cross examinations) is 'missing and cannot be found' so therefore a verbatim transcript is unobtainable.
vi) The previous managing Judge of the ECRO was biased and had external pressures in the judging of the 'totally without merit (TWM)' applications that were deemed so during the currency of the ECRO.
Up to date Position Statement
vii) Procedural Impropriety: The ECRO has not been renewed or extended in accordance with the procedural requirements set out under Civil Procedure Rules (CPR) Practice Direction 3C, which governs Civil Restraint Orders (CROs). Specifically
a) Evidence was cited as "the case papers" and the papers considered by Mrs Justice Knowles have to this day not been provided. it is suggested that presumption to extend has taken place to which the authorities do not permit.
b) It would be simply wrong in law for the court to extend an ECRO that serves the purpose of creating a barrier to a serious miscarriage of justice from being overturned where there are procedural irregularities catastrophic to the safety of the underlying proceedings.
viii) Lack of Justification for Extension
a) Under CPR Practice Direction 3C, an ECRO should only be extended if there is evidence of persistent, vexatious, or abusive litigation behaviour. It is denied that the applicant has engaged in such behaviour since the ECRO was granted, he merely has attempted to overturn the serious miscarriage of justice and his applications to do so have been wrongly rejected without hearing to allow submissions of the significant procedural and other irregularities.
b) The applicant merely seeks to overturn a miscarriage of justice for where there have been procedural irregularities catastrophic to the safety of the underlying proceedings
ix) Unlawfulness of Extension
a) Extending the ECRO without adhering to proper procedural safeguards would violate applicants right to a fair hearing under Article 6 of the European Convention on Human Rights (ECHR).
b) Any decision to extend the ECRO must meet the test of proportionality. In this case, there is no ongoing harm or misuse of court processes to justify an extension.
x) Prejudice to the Respondent
a) The continuation of the ECRO would cause significant prejudice to the applicant, including limiting access to the courts for legitimate claims.
b) A single example of this is where the ECRO was cited as a reason to refuse an application to application to re-establish contact with his son, this is far outside of what is the purpose of an ECRO.
The Legal Framework
i) Society of Lloyd's v Noel [2015] EWHC 734 (QB), Lewis J. makes a distinction stating, 'the court is not dealing with the question of whether to make a new extended civil restraint order where the question is whether the individual has persistently made claims or applications which are totally without merit.'
ii) The Chief Constable of Avon and Somerset Constabulary v Gray [2016] EWHC 2998 (QB), where Warby J observed at [7]:
"The test for the grant of an extension is different: it is whether the court "considers it appropriate." This plainly makes sense, as a person who has already been subject to a GCRO will in principle have had no opportunity to issue any TWM claim or application, other than an application for permission to proceed, or to vary or discharge the GCRO".
iii) Ashcroft v Webster [2017] EWHC 887 (Ch) HHJ Paul Matthews at [38] asserts that the test as to whether a further ECRO should be extended 'is quite different from the test for the first ECRO" the court should not go back to the beginning and ask whether it would be justified in imposing a further ECRO. That would give "double credit" to the applications or claims which justified the ECRO in the first place. Rather, the test for extending an ECRO is simply whether the court considers it "appropriate" to do so. In considering the 'appropriateness' of whether an ECRO should be extended, all the circumstances must be considered, including the vexatious litigant's conduct which resulted in the making of the initial ECRO.
iv) Ghassemian v Chatsworth Court Freehold Company Ltd and another, and other actions [2019] EWHC 3646 (Ch) Mr Justice Birss at [25] in the judgment said, 'the rule itself (PD 3C.3.10) provides that the test for the court when considering whether to extend a civil restraint order is simply "whether it would be appropriate to do so."
v) Glass Slipper Live Events v Event 1 Ltd [2022] EWHC 519 (Ch), Mr Justice Trower said 'the "core question" is usually whether the party against whom the order was originally made has taken steps which indicate a continuing willingness to persist in unmeritorious litigation.' Relevant circumstances can include repeated unsuccessful applications or breaches of an existing ECRO, but "wider considerations" also come into play. This can include conduct that amounts to "pestering those for whose benefit the ECRO was originally made with excessive or onerous correspondence".
Discussion
i) It is evident that the Case Papers relied on by Knowles J to extend the ECRO were the orders and applications and judgments she has read.
ii) The ECRO is not being extended to prevent a serious mis-carriage of justice being over-turned. There is nothing which establishes a mis-carriage occurred. Mr M has had multiple opportunities to excavate one and has failed. It is to prevent meritless repetitious applications either in themselves as a waste of time or being used as a vehicle to harass the targets.
iii) Far from there being no evidence of persistent, vexatious or abusive litigation behaviour there is abundant evidence of precisely that; not that that is a pre-requisite for the court to determine that it is appropriate to extend an ECRO.
iv) Mr M has had ample opportunity to make his case as to whether there should be an extension. There is no breach of his Article 6 right to a fair hearing.
v) In this case there would be no disproportionality in extending the ECRO. It would be wholly proportionate to do so and to seek to limit the exposure of the targets of Mr M's applications but also to minimise the amount of court and administrative time that is absorbed by dealing with his usually meritless applications.
vi) There is no prejudice to the applicant or at least no disproportionate prejudice. If he has a meritorious claim, he will have a good chance of securing permission. If he continues to bring unmeritorious applications, they will be prevented. Knowles J refused his application for permission to bring a section 8 Children Act application because she considered his track record showed he had not changed and so there was no merit in re-visiting the order made by DJ Carr. The court has provided Mr M with a means by which he can seek to exercise his Article 8 rights.
Conclusion