Section 91(14) of the Children Act 1989 ("CA 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 apply a filter to unmeritorious applications, save court time and resources and protect the respondent and subject children from the harm caused by repeated failed applications.
As a result of recent changes made following the enactment of the Domestic Abuse Act 2021 ("DAA 2021"), it is likely that practitioners will see more of these orders going forwards. This column will consider the current law, following the recent changes. It will also consider the test that the court will apply when considering an application for leave where an order is already in place, which has recently been clarified by the court.
Not an absolute bar
It is important first to note that 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) [19981 1 FLR 749).
The introduction of s 91(A) of the CA 1989
Section 91(14) are draconian orders; to impose a restriction is a statutory intrusion into the right of a party to bring proceedings before the court regarding his or her child. The court’s power to do so should therefore be used sparingly and with great care. However, in its report on how the Family Court protects children and parents in cases of domestic abuse (Assessing Risk of Harm to Children and Parents in Private Law Children Cases) the Ministry of Justice concluded that s 91(14) orders were not being used enough to protect children and victims of domestic abuse from the perpetrators continuing that abuse through the making of court applications under the Children Act.
For this reason, on 19 May 2022 s 91(A) was inserted into the CA 1989, pursuant to the DAA 2021. The new provision clarifies a s 91(14) order can be made when the child concerned, or a relevant individual is at risk of harm. Where the person at risk of harm is over 18, the statute specifically states that ‘harm’ includes both ill-treatment and the impairment of physical or mental health. Section 91(A) also introduces the ability of the court to make s 91(14) orders of its own motion, without an application being made by either party. This is highly relevant for unrepresented parties, who may not be aware the provision even exists, let alone how to apply for it.
The provisions have already had a marked impact on this area. In the recent case of F v M [20231 EWFC 5, Hayden J called the new provisions "transformative". In that case there had been ongoing litigation between the parents for a number of years, and a fact-finding hearing had resulted in findings of severe controlling and coercive behaviour, and a finding that the father had raped the mother. Just 8 weeks after the fact-finding hearing, the father issued an application for a child arrangements order for contact with both children, and a specific issue order seeking a change of name for the youngest child (whom he had never met). The mother did not apply for a s 91(14) order but on the basis that the court could make an order of its own motion, Hayden J invited submissions from the parties. In making an order he noted that the new provision properly recognised the very significant toll protracted litigation can take on children and individuals who may already have become vulnerable. In particular, when other ways of conducting controlling or coercive behaviour are cut off, the court process can become the only weapon available, and this provision can help to ensure that future court applications do not become a source of harm in the future.
Practice Direction 12Q
This PD has also been amended to incorporate some key principles for the court to consider when considering whether to make a s 91(14) order. In particular, the PD makes clear:
- They are a protective filter made by the court, in the interests of children.
- The court has a discretion to determine the circumstances in which an order would be appropriate and those circumstances include where the child concerned, or another individual, is at risk of harm, including psychological or emotional harm. The welfare of the child is paramount.
- Circumstances can also include where one party has made repeated and unreasonable applications; where a period of respite is needed following litigation; where a period of time is needed for certain actions to be taken for the protection of the child or other person; or where a person’s conduct overall is such that an order is merited to protect the welfare of the child directly, or indirectly due to damaging effects on a parent carer. Such conduct could include harassment, or other oppressive or distressing behaviour beyond or within the proceedings including via social media and e-mail, and via third parties. Such conduct might also constitute domestic abuse.
- A future application could also be part of a pattern of coercive or controlling behaviour or other domestic abuse toward the victim, such that a s1(14) order is also merited due to the risk of harm to the child or other individual.
- In proceedings in which domestic abuse is alleged or proven, or in which there are allegations or evidence of other harm to a child or other individual, the court should give early and ongoing consideration to whether it would be appropriate to make a s1(14) order on disposal of the application, even if an application for such an order has not been made.
- Section 91(14) orders are a protective filter – not a bar on applications – and there is considerable scope for their use in appropriate cases. Proceedings under the 1989 Act should not be used as a means of harassment or coercive control, or further abuse against a victim of domestic abuse or other person, and the court should therefore give due consideration to whether a future application would have such an impact.
The test for leave
In his recent decision of Re S (CA 1989, s 91(14)) [20231 EWHC 1161, the President of the Family Division, Sir Andrew McFarlane set out the test to be applied when someone against whom a s1(14) order has been made wishes to apply for leave to make an application under the Children Act. The test set out in Re S (Permission to Seek Relief) [20061 EWCA (Civ) 1190, [20071 1 FLR 482 requires the court to consider:
- does the application demonstrate that there is a need for renewed judicial investigation; and
- can the applicant persuade the judge that he has an arguable case with some chance of success?
Section 91(A) of the CA 1989, introduced by the DAA 2021, also addresses the question of leave in s 91A(4) which sets out that, in determining whether to grant leave, the court must consider whether there has been a material change of circumstances since the order was made. McFarlane P therefore concluded that this requirement must therefore be added to the test set out by the Court of Appeal in Re S. In granting the application, 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.
A transformative effect
Clearly, the changes introduced via the DAA 2021 are wide ranging, and have had a major impact on the use of s 91(14) orders.
The court’s ability to protect victims of controlling and coercive behaviour from the continuance of that abuse through further court applications is indeed transformative. The power is now to be deployed without the need to establish exceptional circumstances where there is a need to protect a child from endless unproductive applications (Re C ("parental alienation"; instruction of expert)  EWHC 345. There will undoubtedly be more s 91(14) orders as a result, and it is therefore important for practitioners to be familiar with the law in this area.
Please note this content was originally published in the Family Law Journal August 2023 edition, best practice section.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, November 2023