To bar or not to bar

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First published in Family Law Journal, November 2009.

Linzi Bull and Katie Longmate examine the case law and appropriate procedures for orders under s91 (14) of the Children Act 1989 barring further applications.

Section 91(14) of the Children Act (CA) 1989 has been described as “...a very useful weapon in the arsenal of judicial weapons”, albeit one to use with “...great care and sparingly” (Butler-Sloss LJ in B v B (residence order: restricting applications) [1997] at paragraph 525.

The subsection provides that:

On disposing of any application for an order under this Act, the Court may... 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.

Therefore for the duration of an order made under this provision, while a potential applicant still has access to the court, they do not have the ability to obtain an immediate inter partes hearing.

C (A Child) [2009]

In this case the Court of Appeal considered the circumstances in which it was fair and proper to use this subsection. C was aged eight at the time of the appeal.

In 2008 the appellant mother sought an order that her contact with C was to take place on an unsupervised basis. The respondent father sought both the dismissal of the mother's application and an order under s91(14).

Contact between C and her mother had historically been problematic. During proceedings in 2004 a consultant adult psychiatrist reported that the mother was suffering from a “schizophreniform” illness; in 2008 a professional social worker recommended that contact should continue without enlargement. At the final hearing on 19 June 2008 the judge dismissed the mother's application and ordered that contact should continue to be supervised. The father's application for a section 91(14) order was successful.

Contact subsequently broke down and, by the time the matter came before Thorpe LI and Wall LJ, C had not seen her mother for three and a half months. The Court of Appeal did not entertain the mother's challenge to the decision of the judge at first instance on contact. It was very clear, said the Court, that the judge had been right in his assessment on contact and that no criticism could be made of him. However, the Court did find that the mother's appeal against the section 91(14) order was justified.

The judge at first instance had made a section 91(14) order for a five-year period. He did so despite the mother having had no notice of the father's application and there being no formal application on the court file. Although the mother was in person, the Court of Appeal could not find any evidence that she had been made aware of her right to seek an adjournment of the father's application. The Court held that the section 91(14) order was made "altogether too casually and in clear disregard of clear authority from this Court".

This limb of the mother's application succeeded and the section 91(14) order was set aside.

The merits

Wall LJ made it clear that the guidelines he set out in C (A Child) [2009] (see box, on p11) relate to procedure only and not to the merits of s91(14). Those merits are dealt with in detail in Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] and, in particular, in the speech of Butler-Sloss LJ.

The guidelines reiterate that s91(14) should be read in conjunction with s 1(1) CA 1989, and make it clear that the court should weigh in the balance all the relevant circumstances of each individual case.

Re P was a long and harrowing piece of litigation brought in relation to N. The circumstances were extraordinary and it was described by Wall J (the judge at first instance) as the most poignant he had ever had to try. It is well worth reading the Court of Appeal speeches in full.

N was the fourteenth child of an orthodox rabbi and his wife, who were 64 and 54 respectively. She suffered from respiratory problems and had Down's syndrome. N required hospital treatment and very intensive home care. Her parents decided, while N was in hospital, that they were unable to care for her, because of family illness and other difficulties.

Mrs P became increasingly anxious about N's health and, after no doubt long and fraught discussions, the Ps made the hugely difficult decision that they were not able to meet all the demands of caring for her. N was therefore placed with foster parents, the Cs, at the age of 17 months upon her discharge from hospital. She was later put up for adoption by the Ps. fact, N remained with the foster parents that had cared for her from the age of 17 months.

The Cs were aged 54 and 51 and had seven daughters of their own, two of whom were living at home when N came to live with them. Together with their daughter Brenda, they shared care of N and together carried out her medical care. The Court found that they had given an exceptional level of care to N and had become absolutely committed to her.

Through the course of the litigation, it became clear to the Court that the Ps felt an enormous burden of guilt in relation to their decision to have N fostered. This is perhaps why Butler-Sloss LJ identified that they were unable to accept decisions of the Court that were not made in their favour and were unable to accept the terms of the 1994 residence order.

There followed applications in 1994, 1996 and 1998 with, according to Wall J, the four entirely admirable and decent adults locked into irreconcilable differences over N's future:

in 1994 a residence order was made in relation to N in favour of the Cs, who also obtained parental responsibility for her, and there was to be reasonable contact with the Ps.

In 1996 the Ps applied for a defined contact order, which was later made by consent.

In 1998 the Ps failed in their application to vary the residence order and were barred from making any further applications in that regard without leave. The order made provided that they were to have contact with N on four occasions.

In 1999 the Court of Appeal heard an appeal brought by the Ps against decisions made by the lower court in relation to residence, contact and the requirement of leave to make an application for a residence order under s91(14). It should be noted that further applications in relation to contact were not included in the bar: it was specifically linked to residence.

The case law on s91(14) says that it can be appropriate to make such an order in cases where there have been repeated and unreasonable applications. However, there does not have to be a history of vexatious litigation, and the court may impose a section 91(14) restriction where it is clear that the welfare of the child would otherwise be at risk.

As Butler-Sloss LJ said in her speech, Re P is not a case where the Ps made repeated and unreasonable applications. However, the Cs were suffering significantly as a result of the challenges being made by the Ps in relation to residence and the associated uncertainty. This could and would have an affect on their ability to care for N and thus N's welfare.

The Court of Appeal held that Wall J was right to make the section 91(14) order preventing further applications in relation to residence without limit of time, and the Ps' appeal in this regard was therefore dismissed.

Ongoing applications

The father in Re C-1 [2006] appealed a section 91(14) order made for a period of 12 months by a district judge on the father's application for contact. This was a case with a long, difficult history in which the district judge had been heavily involved. In his judgment, he said that he wanted to 'relieve the pressure' on the mother and concluded that the section 91(14) order would afford her some much-needed breathing space.

The father's primary criticism was that the district judge had made the section 91(14) order of his own volition. The father's counsel complained that she had received no prior notice of the application and therefore was not afforded the opportunity of obtaining evidence from experts who would have spoken in support of her client. Coleridge J agreed, saying that this was not a case where the Court should have ignored the usual procedural steps.

The judge said that the district judge had gone rather further than he ought to have done, particularly in a case where there was not a history of repeated unreasonable applications. He found that the father had not brought about the proceedings in an abusive way, indicated that he would bring further applications in future, or flouted orders in relation to the children. Further, he held that it was inappropriate to make a section 91(14) order where there was an ongoing application, such as in this case. The father's application for indirect contact was, he said, a step along the way rather than the end point. The section 91(14) order was set aside.

Joint residence

In Re W (Children) [2006] the Court of Appeal held that it was inappropriate for a section 91(14) order to be made where there was a joint residence order in place. It held that where there was significant contact between the children and both parents, there was scope for issues to arise in the future which, through no fault of the parents, required judicial determination.

It was held that it would be wrong to cut off immediate access to the court in these circumstances, where there may be legitimate teething troubles.

Conclusion

The case law is dear: a section 91(14) order should not be sought or made without the most careful scrutiny of the circumstances in question, and with the welfare of the child being the paramount consideration. Such an order has huge consequences for the affected party and it is likely to become an option only in the most highly charged and emotional cases. The utmost care will be taken by the court and should be taken by any practitioner launching such an application.

The procedure

In his speech in C (A Child) [2009] (at paragraph 13), Wall LJ gave some helpful guidance about what should happen procedurally when the court is deciding whether or not to accede to an application for a section 91(14) bar. These guidelines underline the serious nature of the order and are as follows:

• The application should be made in writing and on notice.
  
• Leave should be sought in accordance with r4.3 FPR 1991 where the application is made to the High Court or County Court and is made in Form C2. If the leave application is successful, the applicant should then issue a primary application in Form C1.
  
• The court can make a section 91(14) order during or at the end of a hearing where the issue arises on the application of one of the parties or on the cout's own initiative.
  
• In these circumstances, the parties must:
  
  • understand that such an application is being made or that the court is giving consideration to such an application;
    
  • understand the meaning and effect of such an order; and
    
  • have a proper opportunity to make submissions the court.
    
• The court can make a section 91(14) order where the parties are unrepresented.
  
• If the parties are represented, a short adjournment to take instructions should normally be permitted. If there is a substantive objection to the application, it should be made formally on notice.
  
• If the party that is affected by the section 91(14) order is in person, it is particularly important that:
  
  • they understand the effect of such an order; and
    
  • they are given a proper opportunity to respond to it, which could mean adjourning the application for it to be amde in writing and on notice.
    
• The court must explain to the parties the course of action it is likely to take (including the proposed duration of the section 91(14) order) and explain in ordinary language what the effect of such an order will be.
  
• If an unrepresented party has a strong objection to the making of a section 91(14) order, the court should either not make an order or give the recipient permission to apply to set it aside within a specified time.
  

C (A Child)
[2009] ECWA Civ 674
Re P (Section 91(14) Guidelines) (Residence and Religious Heritage)
[1999] 2 FLR 573
Re C-J
[2006] All ER (D) 136 (Apr)
Re W (Children
[2006] EWCA Civ 623
B v B (residence order: restricting applications)
[1997] 2 FCR 518