Closing the door – Section 91(14) orders

Jennifer Lee sets out the courts’ approach when considering a barring order under section 91(14) of the Children Act 1989. As first featured in the Family Law Journal in November 2015.

Section 91(14) of the Children Act 1989 (ChA 1989) empowers the court, when disposing of an application under ChA 1989, to make an order that prevents further future applications for an order under ChA 1989 of any specified kind being made by the parties named in the order without leave of the court. The relevant provision reads as follows:

‘s. 91 Effect and duration of orders etc.

(14) On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court.’

These orders are also known as ‘barring orders’ or ‘section 91(14) orders’ and can be made in any private or public law proceedings concerning ChA 1989. Section 91(14) orders are of course not an absolute bar. They prevent parties having an automatic right to make such applications. If there has been a genuine and substantial change in the circumstances that underlay the barring order, permission may well be granted.

There is an established body of case law on section 91(14) orders. The judgment of the Court of Appeal in Re P (a child) (residence order: child’s welfare) [1999] remains the starting point for any practitioner embarking on, or resisting, an application for a section 91(14) order.

Re P guidelines

Re P concerned a Downs Syndrome child of orthodox Jewish parents who had been placed with foster carers from the age of 17 months. A residence order was made in favour of the foster carers when the child was four. When the child was eight, the natural parents applied for a residence order, seeking the return of the child. A residence order was made in favour of the foster carers, with contact to the natural parents together with a section 91(14) order against the natural parents. The parents appealed against all orders.

Butler Sloss LJ, drawing from previous authority, set out guideline principles for the making of orders under section 91(14). In summary, the guidelines are as follows:

• the welfare of the child is the paramount consideration;
• the courts’ power is discretionary;
• making such an order is an intrusion into the unrestricted right of the party to bring proceedings;
• the power is the exception not the rule;
• it is a weapon of last resort to prevent repeated and unreasonable applications;
• an order can be made if it is in the interests of the welfare of the child, even no previous applications have been made by the parents – if so, then the facts need to be beyond the usual circumstances and that there must be a serious risk that if the order isn’t made the child will be exposed to unacceptable strain;
• a court may impose the restriction on making applications in the absence of a request from any of the parties, subject to the rules of natural justice such as an opportunity for the parties to be heard on the point;
• a restriction may be imposed with or without limitation of time;
• the degree of restriction should be proportionate to the harm it is intended to avoid and the court should specify, where appropriate, the type of application to be restrained and the duration of the order ; and
• it would be undesirable, in other than the most exceptional cases, to make the order ex parte

The grant of such orders is a matter for the court’s discretion, but given the restrictions that it brings, it is a power to be used sparingly and its use must be proportionate to the harm it seeks to prevent. Where the welfare of the child requires it, a section 91(14) order can be made, for example, where there is a serious risk that a primary carer would be subjected to unacceptable strain.

In all cases, the primary consideration of the court is the child’s welfare, and a balance needs to be reached between protecting their welfare and the individual’s unrestricted right of access to the court. Furthermore, in Re P it was held that a section 91(14) order did not infringe the Human Rights Act 1998 or European Convention on Human Rights, Art 6(1) (right to a fair trial) because such an order does not deny access to the court but requires permission to given before further proceedings are set in motion.

Duration and terms of order

It is only in exceptional cases that the court may deliberately not state the duration of the order, or state that it is to last until the child is 16 years old (see Re S (children) [2006]). The reasons for specifying an indefinite period must be fully set out. One case where, exceptionally, it was considered appropriate to make an order until a child’s eighteenth birthday was Re J (a Child) [2007].

The terms of the order must be stated, in particular, it must be made clear what type of applications the order prevents. 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 bar (see Re S (children) and Stringer v Stringer [2006]).

This was also made clear in Re S (children), where the Court of Appeal held that it is not permissible to attach a condition to a section 91(14) order but that it is permissible to state that the conduct leading to the order is to be addressed, and if it is not then an application for permission to make a further application is likely to be unsuccessful.

An order imposing an absolute prohibition would have to be made under the inherent jurisdiction of the court, and not under section 91(14) (Re R (Residence: Contact: Restricting Applications)). Where an order is made under the principles of Grepe v Loam (1887), ie preventing applications by any party without leave, and ordering that any application is to be filed with the court only and dealt with on paper, the guidelines in Re P should apply (Harris v Harris; AG v Harris [2001]).

Notice of an application

Case law is clear that parties should be given ample notice of an application for a section 91(14) order, or if the making of such an order is being contemplated by the court. While the court may of its own motion make an order under section 91(14), this is subject to the rules of natural justice (per Re P).

Advance notice is particularly important where the order sought is against a litigant in person. This was considered in Re C (a child) [2009], where the Court of Appeal gave guidance about making such orders when litigants in person are involved. In particular, it stated that care should be taken to ensure that:

• litigants understood that an application for a section 91(14) order is being made, or that consideration is being given to making such an order;
• that they understand the meaning and effect of such an order, and
• that they have a proper opportunity to make submissions to the court.

A request for a short adjournment to consider the position should normally be granted.

Any order sought without an application issued in advance, and without supporting evidence, should only be granted in exceptional circumstances (DJ v MS [2006]). In DJ v MS, an order under section 91(14) had been made of the court’s own motion and without hearing evidence. While the order may have reasonably been within the contemplation of the court on its particular facts, and made by a judge who had significant involvement in the case, Coleridge J held that exceptional circumstances were required before the court could dispense with the usual procedural step of a formal application.

It was held on the particulars facts in Stringer that informal notice by way of a recommendation in the guardian’s report, and an oral indication at an earlier hearing that such an order would be sought, was sufficient.

If there is a risk that a litigant may feel that the judge imposing the restriction had prejudged a subsequent application for permission against them, the order should provide for the permission application to be made to the relevant Family Division liaison judge (Re S (Permission to Seek Relief)).

Grant of permission

If a party wishes to apply for leave while a section 91(14) order is in place, the relevant test per Re A (Application for Leave) [1998] is whether there is an ‘arguable case’, a serious issue to be tried, and a real prospect of success. One way of proving an arguable case, is to show that there is a renewed case for judicial investigation which should be sufficient for leave to be granted. The applicant also has to demonstrate that their substantive application is not hopeless (per Re S (children)).

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

• the history of the case;
• any risk of potential harm to the child; and
• whether a changes of circumstances has occurred since the last hearing that would warrant the grant of permission.

Generally, permission should not be granted lightly and the application for permission should be made on notice. To grant permission is not to pre-judge the eventual outcome of the case, the substantive application will still need to be considered in accordance with the welfare of the child.

In certain circumstances, the court can direct that an application for leave need not be served on the resident parent in the first instance (Re S (children)). This would be particularly helpful in cases where the application for permission is without merit and service would be particularly unsettling for the resident parent and children.

Recent case law

Re G (a child) [2010]: the court made a section 91(14) order for a five year term in respect of contact to a three-year-old girl, alongside an order for indirect contact only. The period of five years was found to be too long, as it would have the result of making contact after this period nearly impossible. Instead the period was replaced with an order of two years with indirect contact during this period.

In the matter of M (a child) [2012]: in this case, the Court of Appeal held that the judge should have not made the order against a father without notice just because the father had ‘ranted’ at the injustice of the system, sought to withdraw his applications and stormed out of court. The proper course to take would have been to give the father a 24-hour period to reconsider and ‘come to his senses’. The Court of Appeal noted that it was important in the interests of the child’s welfare to ‘draw [the father] back into the proceedings and not to put a barrier on his further engagement with the system’.

Re F (children) [2014]: the proceedings were acrimonious, with each parent making cross-allegations about the other parent’s care of the children. The parental acrimony and the bitter proceedings were having such an adverse effect on the children that one refused to have contact with his father and was taken into care, and the other refused contact completely. Despite this, the litigation continued, with the father seeking residence of the children, which the court refused. The father appealed. In order to bring the protracted and bitter proceedings to and end, the court made an order under section 91(14), to last until the children reached 18. The father appealed against the order. The Court of Appeal refused permission to appeal this aspect of the decision, which was held have been entirely justified on the facts.

K v K [2015]: a decision of the President of the Family Division, Sir James Munby. The father was the parent of M, age 18, and J, age 16. There had been a long history of litigation between the parents, mostly driven by the father’s refusal to accept the status quo and his persistent accusations that the mother had been dishonest or breached orders, none of which appeared to have substance. The father continued to make applications and was defamatory about the judge so his applications were dismissed. He continued to make further applications including one for perjury against the mother, which he withdrew. Munby P considered the history of the case, found neither relevance nor merit in father’s allegations, and made orders designed to limit the father’s ability to re-litigate repeatedly. He held that the father’s applications were clearly an attempt to reopen matters that had already been decided. There was a clear need to bar the father from doing this in future. Interestingly, Munby P also made a corresponding order in the financial proceedings, and reserved the case to himself should the father make any further applications.