TO BAR OR NOT TO BAR…..that is the question? (Section 91(14) of the Children Act 1989

This is the section of the Act which gives the Court the power to restrict applications under the Children Act…it provides:

“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”

This means that the court can order that no further application can be made by a particular person in respect of a child, without permission first being granted by the court. This allows the court to act as a filter on future applications. However the Children Act does not provide further guidance on when this power can be used, so one must refer to case law and the most helpful guidance is that given by Butler-Sloss LJ in Re P (a minor) (residence order: child’s welfare) [2000]Fam 15., as follows:

1. Section 91(14) of the Children Act 1989 should be read in conjunction with s 1 (1), which makes the welfare of the child the paramount consideration

2. The power to restrict applications to the court is discretionary and in the exercise of its discretion the court must weigh in the balance all the relevant circumstances

3. An important consideration is that to impose a restriction is a statutory intrusion into the rights of a party to bring proceedings before the court and to be heard in matters affecting his/her child

4. The power is therefore to be used with great care and sparingly, the exception and not the rule

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

6. In suitable circumstances (and on clear evidence), a court may impose the leave restriction in cases where the welfare of the child requires it, although there is no past history of making unreasonable applications.

7. In cases under paragraph 6 above, the court will need to be satisfied first that the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the court and the all too common situation where there is animosity between the adults in dispute or between the local authority and the family and secondly that there is a serious risk that, with the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain.

8. A court may impose the restriction on making applications in the absence of a request from any of the parties, subject, of course, to the rules of natural justice such as an opportunity for the parties to be heard on the point

9. A restriction may be imposed with or without limitation of time

10. 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 the order

11. It would be undesirable in other than the most exceptional cases to make the order ex parte

12. An absolute prohibition on making any application to the court, would not [in my view] be an order under s 91 (14), which presupposes an (ex parte) application to the court. An order imposing absolute prohibition would have to be made under the inherent jurisdiction of the court: See Re R (Residence: Contact: Restricting Applications [1998] 1 FLR 749.

In this case of Re P, it was a case where a child was born of Jewish orthodox parents and was born with Down’s Syndrome and other medical difficulties, but had been fostered by non practising Roman Catholics when she was 17 months of age. The foster carers developed a close bond and attachment to the child and managed to obtain a residence order when she was 4 years of age. This had initially been resisted by the biological parents in the first instance because they desired for her to be brought up in the orthodox Jewish faith. They were unsuccessful and were further unsuccessful some four years later in an application to vary the residence order. It was during these proceedings that the Court made a s 91(14) order restricting further applications from the biological parents. This decision was upheld by the Court of Appeal, and the guidelines emanate from the leading Judgment of Butler-Sloss LJ.

What we are perhaps most commonly finding is that there is a history of unreasonable applications when we see this order made and is the most usual reason given when applying for such an order, but what is perhaps not clearly understood is that this is not a prerequisite for such an order.

If we contrast the language of section 91(14), with that of s 42 of the Supreme Court Act 1981 which requires the AG to show that the ‘litigant has habitually and without reasonable grounds instituted vexatious proceedings’ before the court can impose any restrictions.

Section 91 (14) has no such requirement and as such this omission is no doubt intentional and designed to give the court wide discretion.

What is the most unifying feature of the main cases using this section is not, as one may suppose, a course of vexatious litigation but is predominantly where there is a risk that further litigation could impose on the child or the primary carers an unacceptable strain by being ongoing and in the future.

It is of note that restrictions cannot be applied to a s. 91 (14). But what the court can do is act as a filter and it is important to consider what a court is looking for. So clearly whilst there can be no actual restriction contained within the order, the Judge can advise the applicant of the issues which the party subject to the order needs to address to ensure a future successful application.

In Re S (Permission to seek relief) [2006] EWCA Civ 1190, [2007] 1 for 482) a s 91 (14) order was granted to restrict further applications by the Father of the child. There was an initial s 91 (14) order made and the Father applied for permission some four years later. He was refused and again refused on appeal. This case highlighted at para 100 of the Judgment of Wall LJ, that the Father had ‘not learned the lessons of the past’

……..the basis for a successful application is an acceptance of the findings made by Judge Hargrove (the judge at the series of substantive hearings concerning C-W including that in which the s 91(14) was made) and a recognition of the serious damage which his behaviour has done to any possibility of a resumption of a proper relationship between himself and C-W. Without evidence of even the beginnings of that process, Judge Murdoch, in our view, was entitled, in the exercise of his experienced judicial discretion, to dismiss Mr Everett’s application’.

In Stringer v Stringer [2006] EWCA Civ 1617, [2007] 1 FLR 1532 at para 10, Wall LJ expanded on this principle”

“In my judgement there is a real and very substantial difference between, on the one hand, the imposition of conditions on a s 91 (14) order and, on the other, a judge telling a litigant, when the s 91 (14) order is imposed, that unless he addresses a particular issue, and can show that he has addressed it any application which he makes for permission to apply to the court for further relief is unlikely to be successful. The latter, which is not binding on either the litigant or the judge, is plainly permissible. The former is not.”

The most recent cases Re C1 and C2 (Child Arrangements) [2019] EWHC B15 (Fam); Re C3 and C4 (Child Arrangements) [2019] EWHC B14 (Fam) were heard one after the other and the Judgments by Keehan J were intended to be read together.

In both cases the Judgment refers to the detrimental effects that the Father’s behaviour had on the Mother and therefore the indirect adverse effect on the children. He made the order by combining the findings he made regarding the Father’s inability to see anyone’s view but his own. Saying at paragraph 44 of his Judgment (Re C1 and C2)

‘The father was ‘obsessed with facts, but those are his facts. He has no truck at all with any contrary view of the world’

When making a s 91 (14) similar order in Re C3 and C4 at para 17 of his Judgment he opines:

‘I consider the welfare of the mother, and thereby the welfare of the children, require further respite from the Father’s litigation conduct. Were he to litigate in an unregulated manner it would cause harm to [the mother] and thereby harm to C3 and C4’

What these most recent cases highlight is that the behaviour of the Father in this litigation, which was found to be intimidating, coercive and aggressive to the Mother, and which was taking a grave toll upon her emotional and psychological wellbeing would then have a serious adverse impact directly on the emotional and psychological well being of the children.

What this effectively demonstrates that in viewing whether a s 91 (14) bar should be imposed is that the welfare of the child (children) is paramount even if the impact is upon the caring parent, but can be seen as this having the effect of causing harm and emotional distress to the child (children).

Summary

Whilst it may appear that section 91 (1) orders are somewhat draconian in nature – they are most usually found in cases which are extreme, difficult and contentious in nature in themselves.

It may be that there is a history of what appear to be repeated unreasonable and unsuccessful applications, BUT, this is not the prime mover in such cases and this order may be made without such a history but where such cases involve a high degree of conflict.

The thread which needs to be recognised is ‘the risk’ to the child mainly, but also to the primary carers, of further and continued litigation, and not just a history of litigation.

An order such as this may be particularly suitable and relevant where a parent cannot seem to recognise or understand how their behaviour and actions impact on their child (or the child’s carers). Where, for example, a parent is unable to recognise the impact to the child, and carers, and where they have failed to address issues which have been highlighted by experts and the Court in earlier proceedings which have and continue to cause difficulties for the child (and the primary carers) who are at the centre of the proceedings.

This is where the Court can act as a filter, of its own motion if necessary, to advise an applicant who seemingly cannot address the issues, and to place a bar on future applications.

These circumstances, however extreme, demonstrate how the Court can use its powers to act as a filter on future applications and thereby placing and promoting the welfare of the child as paramount.