Section 91(14): Is it now fit for purpose?

Private Law (Child Arrangements Programme (CAP))

28 March 2023

The application of Section 91(14) has long been seen as a blunt instrument to prevent repeat applications for Section 8 orders been brought by one party or the other. The intentions were noble back in 1991 when it became law,  but did not prevent a significant amount of repeat applications being made, often perpetuating domestic abuse  by a former partner on the other. Frequently, clients have told me the motivation by their ex-partner making repeat applications, is merely an attempt to control them as they did during their relationship, instead of a desire to do what is in their child’s best interest.

Section 91(14) of the Children Act 1989, otherwise described as “barring orders” 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.”

In the case of Re P (Section 91(14) Guidelines (Residence and Religious Heritage) 1999 2FLR 573  the guidelines were set out by Lady Justice Butler-Sloss and do not need to be repeated here. In any case there is a helpful summary from a previous article penned by my colleague Marie Crawford, which is on the chambers website. This article is focused what changes have come about since the passing of the Domestic Abuse Act 2021, in particular the insertion of Section 91A into the Children Act 1989, with effect from 19th May 2022, by Section 67(3) of the Domestic Abuse Act.

The provisions in Section 91A, so far as they are relevant are these:

(1) this section, makes further provision about orders under section 91(14).

(2) the circumstances in which the court may make a section 91(14) order include among others, where the court is satisfied that the making of an application for an order under this Act of a specified kind by any person who is to be named in the section 91(14) order would put-

(a) the child concerned, or

(b) another individual (‘the relevant individual’), at risk of harm.

(3) in the case of a child, or other individual who has reached the age of eighteen, the reference in subsection (2) to ‘harm’ is to be read as a reference to ill-treatment or impairment of physical or mental health.

(4) where a person who is named in a section 91(14) order applies for leave to make an application of a specified kind, the court must, in determining whether to grant leave, consider whether there has been a material change of circumstances since the order was made.

These provisions have been commented upon in cases both prior to and after 19th May 2022. In the case of Re A (A CHILD) (supervised contact (s91(14) orders [2021] EWCA Civ 1749 Lady Justice King said that while she should be careful to interpret a statutory provision not yet in force and where there is no published statutory guidance, the proposed section fits well with the modern approach that should be taken in making barring orders. Earlier in her judgment she coined the phrase “lawfare’’ referring to parents using court proceedings as a weapon of conflict.

Post enactment the provisions were recently referred to in the case of F v M (Rev) [2023] EWFC 5, the sequel to F v M [2021] EWFC 4, both cases heard by Mr Justice Hayden. In this case, the parties agreed that a barring order should be made, but nevertheless the case provided an opportunity for the judiciary to comment recently on the new provisions. Mr Justice Hayden approved of the comments made by Lady Justice King and added these words:

“The provisions within section 91A are transformative. The section provides a powerful tool with which judges can protect both children and parents with whom they live, from corrosive, demoralising, and controlling applications which have an insidious impact on their general welfare and well-being and can cause real emotional harm. This amended provision strikes me as properly recognising the very significant toll protracted litigation can take on children and individuals who may already have become vulnerable for a variety of reasons. It also dovetails with our enhanced understanding of the nature of controlling and coercive behaviour. When all other avenues are lost, too often the Court process becomes the only weapon available. Lawyers and judges must be assiduous to identify when this occurs, in order to ensure that the court is not manipulated into becoming a source of harm, but the guarantee of protection”.

The words used by Mr Justice Hayden are in my view significant in showing the suggested change in approach the courts should take when determining whether “barring orders” should be made.  It is still early days, however, less than a year since section 91A has been in force, the steer from the judiciary thus far, seems to suggest the court will now be more attuned to the motivations for why repeated applications are made, and will be more vigilant in identifying attempts, of further domestic abuse by the way of the court system.

The answer to the question posed by this article is uncertain, but there is now a great degree of optimism that the court will be more vigilant in making barring orders in the future, following  F v M.


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