A question sometimes posed by a disgruntled parent at the conclusion of child arrangement proceedings is whether the court has the power to prevent them from making a future application to change those child arrangements. Alternatively, some parents will be seeking the protection of the court from such further applications.
In most cases the court would not address at the conclusion of proceedings whether there should be any filter to a future application. However, where there is a history of repeated and unmeritorious applications, or the child’s welfare requires it, or the court is satisfied that such an application would place that child or another person at risk of harm, then the court can make an order preventing a future application without first obtaining the court’s permission.
A Protective Filter, Not a Bar (Practice Direction 12Q)
S91(14) Children Act enables the court, when making a child arrangements order determining with whom a child should live or spend time with, to impose an order preventing a parent from making a future application to the court for an order concerning their child without first obtaining permission (‘leave’) from the court.
The wording is as follows:
S91(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.
In any case in which Practice Direction 12J is engaged (any case concerning child arrangements, where there is abuse alleged or admitted) the court is required to consider whether a s91(14) order may be appropriate: 4A.2 Where allegations of domestic abuse are alleged or proven, the court should consider whether a section 91(14) order might be appropriate even if an application for such an order has not been made. (Section 91A(5) of the 1989 Act specifies who can make an application, and provides that the court can make an order of its own motion.)
Purpose of such orders
The central focus of the provision is to protect a parent and a child from inappropriate applications (often repeated, and made without foundation or merit), described in one recent judgment ([2023] EWFC 5, 2023 WL 00191190) as ‘corrosive, demoralising and controlling applications which have an insidious impact on their general welfare and wellbeing and can cause real emotional harm’ to both the children and the parent with whom they live.
Pre-emptive s91(14) orders can be made even before a party has made repeated and unreasonable applications. For example, in A and B (Children: Restrictions on Parental Responsibility: Extremism and Radicalisation in Private Law) [2016], the Father posed an extreme risk of harm to the Mother and children, having served a prison sentence for a suspected abduction attempt. It was alleged that the Father had harmed the Mother several times, and threatened to kill her and the oldest child. The Mother and children had to move to a series of secret locations. Despite this, the Father continued to deny any wrongdoing and made repeated attempts to locate the Mother and children. Although there had not been repeated, vexatious applications to the court, the 91(14) order was needed to prevent the Father from making such future applications.
The provision as drafted did not provide the court with any guidance as to when the power should be exercised, which was intended to leave the court with wide discretion, weighing up the relevant circumstance with the child’s welfare as the paramount consideration (s1(1) Children Act 1989 – known as the ‘paramountcy principle’).
Guidance from case law
There has historically been a high hurdle for obtaining such an order.
The leading case of re P (A Minor)(Residence Order; Child’s Welfare) [2002] set out guidelines, stating inter alia:
- Section 91(14) of the Act of 1989 should be read in conjunction with section 1(1), which makes the welfare of the child the paramount consideration.
- 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.
- 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.
- The power is therefore to be used with great care and sparingly, the exception and not the rule.
- It is generally to be seen as a useful weapon of last resort in cases of repeated and unreasonable applications.
In the more recent case of Re A (A Child) (supervised contact) (s91(14) Children Act 1989 orders) [2021], the Court of Appeal sought to put the above guidelines into a more modern context, and in anticipation of the new section 67 of the Domestic Abuse Act 2021 (see below). Lady Justice King gave the leading judgment, and sections bear repeating in full:
33. Before considering the way the mother puts her case in this appeal, it is worth placing the Re P guidelines into a modern context and also considering how the provision in section 67 of the Domestic Abuse Act 2021 may impact upon the guidelines when the time comes for that section to be brought into force.
34. Although the guidelines have substantially withstood the test of time and have received the endorsement of this court on a number of occasions in the intervening period, the fact remains that they were set out in April 1999, some 22 years ago. In the intervening period the forensic landscape has changed out of all recognition. Amongst the many advances is the advent of the smart phone and of social media in all its forms. Of particular relevance in this context is the almost universal use of email as a means of instant communication. Another development of relevance is that as a result of the withdrawal of legal aid in the majority of private law cases, a large proportion of parents are unrepresented and therefore do not have, as the judge described it in the present case, the ‘steadying influence’ of legal advisors.
35. One of the consequences of these changes which is seen not uncommonly in private law proceedings is that the other parties, and often the judge him or herself, can be (and often are) bombarded with emails from a parent, whether male or female, who is representing him or herself. Such behaviour may be the result of anxiety but in other cases, as in this case, it is part of a campaign of behaviour by one parent against the other which amounts to a deeply disturbing form of oppressive behaviour on their part.
36. Regardless of the motivation, behaviour of this type, as exhibited by the mother in this case by way of an example, is deeply distressing to the parent who is the subject of such abuse and litigation at this level and is highly debilitating to each of the parties and to their children. All too often such communications are ill-considered and ill-judged with the consequence that every minor dispute or misunderstanding is met with an application to the judge. More importantly, the distress and anxiety caused to the other parent and to the children at the centre of such a raging dispute cannot be overestimated, nor can the damaging consequences where the focus of the litigation veers away from what, on any objective view, would and should be regarded as the real issues going to the welfare of the children concerned.
This case highlighted that historically there has been a judicial reluctance to make the orders, stating:
It seems, however, that the phrase ‘weapon of last resort’, when put together with Guideline (4) which says that: ‘The power is therefore to be used with great care and sparingly, the exception and not the rule’, has led to an understandable, but perhaps misplaced, reluctance for judges to make orders under s91(14) , save for the most egregious cases of which, on the facts as found by the judge, this is one.
And
Further, the guidelines do not say that a s91(14) order should only be made in exceptional circumstances, rather Guideline 4 says such an order should be the ‘exception and not the rule’. That is of course right, there is no place in our child focused family justice system for any sort of ‘two strikes and you are out’ approach, but it seems to me that in the changed landscape described in paragraph 30 above there is considerable scope for the greater use of this protective filter in the interests of children.
New statutory guidance
S67 of the Domestic Abuse Act 2021 inserted a new section 91A into the Children Act 1989, to provide the court with statutory guidance as to when such an order, previously deemed to be draconian, might be required.
In addition, a new Practice Direction 12Q was introduced in May 2022.
The new section 91A states the following:
Section 91(14) orders: further provision
(1) This section makes further provision about orders under section 91(14) (referred to in this section as “section 91(14) orders”).
(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 the 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.
(5) A section 91(14) order may be made by the court—
(a)on an application made—
(i)by the relevant individual;
(ii)by or on behalf of the child concerned;
(iii)by any other person who is a party to the application being disposed of by the court;
(b)of its own motion.
(6)In this section, “the child concerned” means the child referred to in section 91(14).]
Practice Direction 12Q provides further guidance on both the use of the Order, and the procedure:
2.7 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 court can make such an order of its own motion, even if neither of the parents has applied for the same. Abuse and harm are not limited to allegations or findings of physical abuse, but include sexual abuse, threatening or violent behaviour, coercive and controlling behaviour, economic abuse and psychological or emotional abuse, per the definition in PD12J.
In practical terms, the order when made will usually be time limited (although in some cases this might be simply for the child(ren)’s minority) and will make clear the applications to be restricted.
The intended benefit of the order is that a judge will have to carefully consider any future applications before the Respondent and child become involved. This should prevent the Applicant forcing the Respondent (and child) back into court proceedings and can provide a well needed period of respite. There is a growing understanding of the impact of “litigation abuse” (or ‘lawfare’) where the court itself is used as a tool of controlling behaviour or abuse, and that to allow the Applicant unfettered access to the family court could result in considerable suffering for the Respondent and child.
Relevant Case Law
Readers are referred to both Re P [2002] and Re A [2021] as cited above.
In addition, the following provide some further guidance:
- [2023] EWFC 5, 2023 WL 00191190: In this case, very serious allegations had been made by the Mother and found by the Court, and the Court determined that the Father had “nothing to offer” the children. See also: ‘A Disagreeable Truth’: When a parent has ‘nothing to offer’
- Re B (A Child) (Section 91(14) Order: Duration) [2003]: The court originally made a 91(14) order against a Father for the child’s minority, then aged 9. On appeal, the order was limited to 2 years.
- M-D (A Child) [2014] EWCA Civ 1363: The court made a 91(14) order against a Father to prevent him from making further applications in respect of his 8 year old daughter until her 16th birthday, the court having previously found he had sexually abused the child. The Court of Appeal rejected his appeal against the duration of the order, both as he needed to undertake therapy and to give the parent and child some respite.
- No conditions can be attached to the order, save to clarify duration and the nature of orders covered. In S -v- S [2006] EWCA Civ 1617, the court directed that permission would only be granted on the making of an application if the Father produced a report confirming he had engaged in psychological treatment. The Father’s appeal against this condition was successful. The court can however invite or suggest that the affected party consider or engage with work or to address a particular issue.
For further information, please contact:
Ellie Webster, Hill Dickinson
ellie.webster@hilldickinson.com
