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Please note this content was originally published in the Family Law Journal July 2021 edition, best practice section.

Section 91(14) of the Children Act 1989 allows the court to order that further applications in relation to a child or children may not be made by the party named without permission from the court.

The purpose is to prevent unnecessary and disruptive applications being made. By requiring an applicant to first obtain permission from the court, the court can limit the harm that may be caused if the application were to be issued.

Whilst certainly not commonplace, these orders are not rare, and it is important for practitioners to have an understanding of the relevant law and procedure.

This column sets out the current law. Amendments will be introduced via the Domestic Abuse Act 2021 when brought into force, which are also summarised below.

Not an absolute bar

Whilst they are often referred to as draconian orders, s 91(14) orders are not an absolute bar to a future application being made. They simply add an additional hurdle by requiring the court’s permission before an application can be made. For this reason, it has been held that a s 91(14) order does not infringe the Human Rights Act 1998 or European Convention on Human Rights, Art 6(1) (right to a fair trial).

If an absolute bar is required, an application can be made under the court’s inherent jurisdiction, rather than s 91(14) (see Re R (Residence: Contact: Restricting Applications) [1998] 1 FLR 749).

When will an order be made?

The statute does not provide a test for when orders should be made, but pursuant to the judgment of Butler Sloss LJ in Re P (Section 91(14) Guidelines (Residence and Religious Heritage) [1999] 2 FLR 573, the court must carry out a balancing exercise between the welfare of the child and the right of unrestricted access of the litigant to the court. The judgment gives detailed guidance, which continues to provide the starting point for these applications, and which subsequent cases have developed.

Welfare

The welfare of the child is the paramount consideration.

Discretionary power

In the exercise of its discretion the court must weigh in the balance all the relevant circumstances.

An exceptional order

To impose a restriction is a statutory intrusion into the right of a party to bring proceedings before the court and to be heard in matters affecting his / her child. The power is therefore to be used with great care and sparingly, and orders should be the exception and not the rule.

Weapon of last resort

It is generally to be seen as a weapon of last resort in cases of repeated and unreasonable applications.

Past history of unreasonable applications is not necessary

Where circumstances require it, a court may make a s 91 (14) order even though there is no past history of making unreasonable applications. The court will need to be satisfied:

  1. That the facts go beyond the commonly encountered need for a time to settle so that any animosity between the adults can recede; and

  2. That there is a serious risk that, without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain.

Duration

A restriction may be imposed with or without limitation of time. However, an order which is indeterminate or is to last until a child is sixteen should be an exceptional step, taken only in the most dire cases to protect the child from conflict (Re J (A Child) (Restriction on Applications) [2007] EWCA Civ 906, [2008] 1 FLR 369 and Re G (Residence: Restriction on Further Applications) [2008] EWCA Civ 1468, [2009] 1 FLR 894).

If such an order is made the court must spell out why and what needs to be done to make a successful application in the future (Re S (Permission to Seek Relief) [2006] EWCA Civ 1190, [2007] 1 FLR 482).

Proportionality

The degree of restriction should be proportionate to the harm it is intended to avoid. Therefore the court imposing the restriction should carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained and the duration of order.

Imposing an order in the absence of a request

The court can impose the restriction on making applications of its own initiative, subject to the rules of natural justice, such as an opportunity for the parties to be heard.

Drafting the order

Although the court may state what should be addressed before it is likely to grant permission for a future application to proceed (and may record this in a recital), the court cannot attach conditions to the order requiring a party to take a specific step before an application for permission will be successful (see Re S (Permission to Seek Relief) [2006] EWCA Civ 1190, [2007] 1 FLR 482 and Stringer v Stringer [2006] EWCA Civ 1617, [2007] 1 FLR 1532).

It is possible to state in the order that any future applications for permission should not be served on the resident parent. This can be particularly helpful in cases where the application for permission itself would cause further harm.

Orders against litigants in person

The Court of Appeal has handed down guidance on the approach to be taken when considering making an order under s 91(14) against a litigant in person in Re C (Litigant in Person: Section 91(14) Order) [2009] EWCA Civ 674, [2009] 2 FLR 1461. It is of utmost importance that the litigant in person:

(a) understands that such an application is being made, or is being considered;

(b) understands the meaning and effect of such an order;

(c) has a full understanding of the evidential basis on which such an order is sought; and

(d) has a proper opportunity to make submissions to the court.

Procedure

An application for a s 91(14) order should be made on Form C2.

The application should be made on notice except in exceptional circumstances so that the respondent has an opportunity to consider it and obtain representation.

As explained above, it is wrong in principle, except in exceptional circumstances, to put a litigant in person in the position, at short notice, of having to contest a s 91(14) order.

Future applications for permission

To obtain permission to issue a future application, the respondent to a s 91(14) order will have to show that he or she has an arguable case with some chance of success (Re P (Section 91(14) Guidelines) (Residence and Religious Heritage (above)).

In deciding whether to grant leave, the court will consider:

(a) the history of the case;

(b) any risk of potential harm to the child; and

(c) whether a change of circumstances has occurred since the last hearing that would warrant the grant of permission.

In granting permission, the court is not prejudging the eventual outcome of the case. The substantive application will still need to be considered in accordance with the welfare of the child.

The application for leave should be made in Form C2. A copy of the draft substantive application that will be made if permission is granted (in Form C100), and a draft of the order sought will need to be filed with the application.

Reform

In June 2020, a report on how the Family Court protects children and parents in cases of domestic abuse was published (entitled, Assessing Risk of Harm to Children and Parents in Private Law Children Cases). This included a review of s 91(14).

The report concluded that s 91(14) orders were not being used enough to prevent perpetrators from continuing their abuse through making applications under the Children Act and amendments should therefore be made.

Section 67 of the Domestic Abuse Act 2021, therefore amends s 91(14) and provides for the introduction of new s 91A of the CA 1989. The new clause seeks to clarify that s 91(14) orders are available where proceedings are causing harm, particularly where proceedings could be a form of continuing abuse, and that courts can make an order on their own initiative.

Where the respondent to a s 91(14) order wishes to apply for permission to make an application, the court must consider whether there has been a material change of circumstances when deciding whether to grant permission.

The hope is that these amendments will ensure that s 91(14) orders are used more often by courts to protect victims of domestic abuse where further applications put them at risk of harm.

If you require further information about anything covered in this briefing, please contact Amy Radnor, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, August 2021

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