The use of Specific Issue Orders

Cecilia Barrett and Eleanor Howard consider the Court of Appeal’s recent decision in a case that concerned the use of Specific Issue Orders to give one parent ‘overriding parental responsibility’ to make decisions in specific circumstances.

Background in brief:

The matter in in T-D (Children: Specific Issue Order) [2024] EWCA Civ 793 concerned two children; aged 9 and aged 4. The parties were initially involved in private law proceedings following the breakdown of their relationship in July 2020. Unfortunately the level of parental acrimony continued to escalate and the Local Authority issued public law proceedings in January 2023. The matter came before HHJ Tolson KC for a contested final hearing in February 2024 at the conclusion of the public law proceedings.

HHJ Tolson KC made a number of findings that the father had been a victim of domestic abuse from the mother and that she had been controlling and obstructive with professionals. The Judge acceded to the recommendations of the Guardian in granting a Child Arrangements Order that the children ‘live with’ both of their parents on an equal basis. The Court also acceded to the recommendation of the Guardian that the father obtain ‘overriding parental responsibility’. HHJ Tolson KC made the following Specific Issue Order;

“The court directs that the following questions insofar as they may in future arise in connection with parental responsibility for either or both children are to be determined by the father in the event of disagreement with the mother.

    1. All questions relating to schooling, this is to include which schools the children are to attend; who shall attend parents’ evenings, sports events etc;
    2. All questions relating to future therapy including whether and if so on what basis therapy is to be provided; by whom, etc.;
    3. All questions relating to interactions with social workers and medical professionals, including what is to be said to them concerning the children and the extent to which they may be involved in the children’s lives.

8. For the avoidance of doubt the father must still consult the mother in relation to decision making for all significant events in which he exercises overriding parental responsibility.”

The mother sought permission to appeal on seven separate grounds. Permission was refused by Lord Justice Peter Jackson on five of the seven grounds and granted on two.  

The issues before the Court of Appeal at the hearing were therefore as follows;

  1. Whether the Court at first instance had the power to make a Specific Issue Order granting one parent ‘overriding parental responsibility’ in relation to specific matters;
  2. If such a power existed, whether such an Order was wrong to make on the facts of this case.

The Local Authority, father and Guardian opposed the mother’s appeal on both grounds. During the appeal hearing the mother conceded the first ground of her appeal and the issue before the Court was therefore limited to whether or not the Court at first instance was wrong to make the Specific Issue Order in the circumstances.

What did the Court of Appeal decide?

The Court of Appeal determined that the Specific Issue Order was unnecessary and disproportionate in the circumstances. The Court of Appeal highlighted that the other examples found within the case law involved one parent who was absent or only minimally involved with the care of the children. This case involved a fully engaged carer. The appellate Court did not find there was established reasoning for depriving the mother of her active parental responsibility in relation to the three issues in question and for doing so indefinitely.

Lord Justice Peter Jackson made clear that the HHJ Tolson KC was beyond criticism in relation to his findings and other determinations, however, the Specific Issue Order as drafted was unlikely to be effective. The appellate Court also found that the correct approach was for the Court to determine the disputed issues relating to schooling and therapeutic support rather than an Order to empower the father to make unilateral decisions about these.

Eleanor Howard of Harcourt Chambers acted for the Local Authority at both first instance and on appeal and Cecilia Barrett, also of Harcourt Chambers and instructed by Fairbrother & Darlow, represented the children at first instance and on appeal (albeit her attendance at the appeal was eventually excused and the Court of Appeal considered her written submissions).