S.91(14) Orders: A Complete Guide

Private Law (Child Arrangements Programme (CAP))

29 July 2019

This is a quick refresher on S.91(14) Orders as a consequence of the most recent case concerning this subject: Re N (children) [2019] EWCA Civ 903. Although not changing the previous position, and in fact endorsing what we previously understood about the not insignificant amount of law in respect of such orders.

This was an appeal to the Court of Appeal by a father against the dismissal of his application to vary a s.91(14) order.

The case concerned a protracted private law dispute between parents regarding their 2 children, which had been continuing for some 5 years. At a hearing listed as a directions hearing that the father did not attend (although he filed a position statement) the Judge heard evidence from the children’s Guardian and the Mother. At the conclusion of the hearing, he indicated that he was minded to make a final order including a s. 91 (14) order applying to both Parents and lasting for 2 years.  The resulting order gave father liberty to apply to vary the s. 91(14) order within 4 weeks.

The father, who was in person, made an application to vary within the time limit, but this application was listed almost 4 months after the hearing.  The mother did not attend the hearing. The father produced only 2 documents in support of his application, which related to psychotherapy the father had undergone. The judge dismissed the application.  The Father appealed both orders.

The Court of Appeal allowed the appeal and held that none of the fundamental requirements identified in Re T (a child) (suspension of contact) [2015] EWCA Civ 719  for the making of a s 91(14) order were satisfied.  In the light of the irregularities in the way order was made, the summary dismissal of the father’s application was also plainly wrong.  The 2 hearings taken together infringed Father’s right to a fair hearing.  The matter was remitted for further hearing.

The law applicable to S.91(14) orders

S.91(14) states: ‘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’.

Always the first port of call, the Family Court Practice 2019 commentary states:

‘no application … without leave of the court’ (s 91(14))—This subsection has produced many reported decisions concerning the circumstances in which an order restricting future applications should be made. In Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573, CA, Butler-Sloss LJ drew up a number of guidelines from the reported cases, while indicating that the court always has to carry out a balancing exercise between the welfare of the child and the right of unrestricted access of the litigant to the court. The guidelines are as follows:

(1)     Section 91(14) 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 right 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 weapon of last resort in cases 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 (see also Re P (Children Act 1989, ss 22 and 26: Local Authority Compliance) [2000] 2 FLR 910, FD).

(7) In cases under para 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, without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain (see also Re S (Contact: Promoting Relationship with Absent Parent) [2004] 1 FLR 1279, CA). The Court of Appeal has reiterated the principle that a need for time to settle to the regime ordered is not sufficient to justify a s 91(14) order: the purpose of the order could and should have been achieved by giving the order time to work itself out: Re G (Residence: Restrictions on Further Applications) [2009] 1 FLR 894, CA).

(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. In particular 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 (Re C (Prohibition on Further Applications) [2002] 1 FLR 1136, CA).

(9) A restriction may be imposed with or without limitation of time. In Re B (Section 91(14) Order: Duration) [2004] 1 FLR 871, CA, it was said that where the mother was determined to excise the father from a child’s life the court should never abandon endeavours to right the wrongs within the family dynamics. A s 91(14) order which was to last during the child’s minority and was without limitation to specific applications gave the wrong message in a case in which the father had not abused the family justice system nor undermined the mother’s primary care. An order which is indeterminate or is to last until a child is 16 should be an exceptional step because it is, in effect, an acknowledgement that nothing more can be done. 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) [2007] 1 FLR 482, CA). In S v B & Newport City Council: Re K [2007] 1 FLR 1116, FD, a special guardianship order and a s 91(14) order were made preventing the natural parents making any application for contact without limitation of time because the child’s needs required that order to be made and failure to do so, in the light of the parents volatile behaviour, would impose an unacceptable strain on the carers.

(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 order (see also Re G (Contempt: Committal) [2003] 2 FLR 58, CA).

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

The commentary in the Family Court Practice continues:

Furthermore, Butler-Sloss LJ stated that in her view an absolute prohibition on making any application to the court could not be made under s 91(14). Additionally, a s 91(14) order did not infringe the HRA 1998 or ECHR 1950, Art 6(1) because it did not deny access to the court, only access to an immediate inter partes hearing. An order imposing an 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, CA); where an order is made under the principles of Grepe v Loam (1887) 37 Ch D 168 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 above should apply (Harris v Harris; Attorney-General v Harris [2001] 2 FLR 895, FD). It is not appropriate to make a s 91(14) order in contempt proceedings unless there is an application for a child arrangements order before the court (Heathcote v Crackles [2002] EWCA Civ 222).

The commentary continues, setting out the general principles to be considered:

(i) Orders without limit of time should only be made in outstandingly bad cases, which merit the strongest degree of forensic protection for the child from ill-founded conflict (Re J (A Child) (Restriction on Applications) [2008] 1 FLR 369, CA and Re G (Residence: Restrictions on Further Applications) [2009] 1 FLR 894, CA). Wilson LJ has repeated that s 91(14) orders are to be used with great care, sparingly and as a weapon of last resort in cases of repeated and unreasonable applications. A court was not entitled to take the view that there was no undue hardship in requiring a parent to show an arguable case in support of a proposed application. The Court of Appeal spent a surprising and unfortunate amount of its time in reversing orders made on an inappropriately summary basis: Re A (Contact: Section 91(14)) [2010] 2 FLR 151, CA.

(ii) It is not permissible to impose conditions on a s 91(14) order (Re S (Permission to Seek Relief) [2007] 1 FLR 482, CA). However, it is permissible for a judge imposing a s 91(14) order to identify a particular issue and to suggest to the litigant that unless he could show that that particular issue had been addressed any future application for permission to apply to the court for further relief was unlikely to be successful (Stringer v Stringer [2007] 1 FLR 1532, CA).

(iii) Once a prohibition under s 91(14) has been made, any further applications for leave to bring proceedings should generally be heard inter partes rather than ex parte; this enables the court to investigate fully whether or not there is a genuine need for further proceedings (Re N (Section 91(14) Order) [1996] 1 FLR 356, CA, but cf Re S (Permission to Seek Relief), above). It is open to a judge making a s 91(14) order to direct that any permission to apply during its operation shall not in the first instance be served on the respondent, but should be considered by the judge on paper. However, an applicant should not be denied an oral hearing if that is sought (Re Bradford; Re O’Connell [2007] 1 FLR 530, CA). The test for granting such leave once a s 91(14) order has been made is whether there is an arguable case with some chance of success (Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573, CA, at [54]). The application should demonstrate there is a need for renewed judicial investigation (Re A (Application for Leave) [1998] 1 FLR 1, CA, at [53]). These two tests complement each other (Re S (Permission to Seek Relief) [2007] 1 FLR 482, CA, at [78]).

There are some mandatory requirements that must be met and they are set out in the commentary as follows:

Imperative requirements—Before making a s 91(14) order, the court must be satisfied that t         he parties affected:

(i) are fully aware that the court is seised of an application and is considering making such an order;

(ii) understand the meaning and effect of such an order;

(iii) have full knowledge of the evidential basis on which such an order is sought; and

(iv) have had a proper opportunity to make representations in relation to the making of such an order; this may of course mean adjourning the application for it to be made in writing and on notice: Re T (A Child) (Suspension of Contact) (s 91(14) ChA 1989) [2016] 1 FLR 916, CA.

Loss of self-control—Where a party loses their temper in court and/or walks out of the hearing it is wrong, on this ground alone, to make a s 91(14) order against that party. The appropriate course is to allow the party time to repent and come to his/her senses by adjourning the matter for a minimum of 24 hours to ‘draw the party back into the proceedings and not to put a further barrier on his further engagement with the system’: Re M (Section 91(14) Order) [2012] 2 FLR 758, CA.

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). It is of utmost importance that the party, parties or other persons affected by the order, particularly if they are in person: (a) understand that such an application is being made, or that consideration is being given to making a s 91(14) order; (b) understand the meaning and effect of such an order; and (c) have a proper opportunity to make submissions to the court. A request for a short adjournment to consider the position should normally be granted: Re C (Litigant in Person: s 91(14) Order) [2009] 2 FLR 1461, CA, at [13].

Other circumstances

Such as matters relating to orders relating to contact with children in care are dealt with under s.34 of the Children Act 1989 rather than s.91(14):

‘order under section 34’ (s 91(17)(a))—Section 34 provides for various types of order regulating the contact of children in care with their parents and others (Family Court Practice 2019).

And finally, in relation to the procedure to be adopted where an order under s.91(14) has been made and an application for leave to make a further application is required:

Leave of the court—Where any of the provisions of s 91(14)–(17) requires the leave of the court to be obtained before a particular application under the Act may be made, leave should be sought in accordance with FPR 2010, Pt 18. The application for leave should be made in Form C2 (see FPR 2010, r 5 and PD5A, Table 1). If leave is granted, the applicant will proceed to issue an application for an order in Form C1.

This (relatively) brief guide has hopefully covered all of the relevant statute and case law to date. Compiling it has been an instructive exercise and one in which it becomes apparent that this topic involves a fair amount of law. Although such applications do not arise for family practitioners very frequently, they are not a rare occurrence either. Hopefully this guide will be of assistance to practitioners the next time one does unexpectedly arise.


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