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Section 91(14) Orders - An Update

Rhiannon Davies, of New Walk Chambers, reviews the latest judicial thinking surrounding applications for s91(14) Children Act orders

image of rhiannon davies, new walk chambers

Rhiannon Davies, New Walk Chambers

It is now nearly sixteen years since the guideline judgment of the Court of Appeal in Re P (section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573 was handed down. The principles set out in that judgment remain the starting point for any advocate when considering such applications, both under the Children Act 1989 and under the inherent jurisdiction (see Harris v Harris; Attorney General v Harris [1999] 2 FLR 573). The case law has continued to grow, with matters such as the imposition of conditions and the duration of such orders again coming before the appellate courts. This article is therefore intended to consider more recent authorities in order to provide a clear summary of the present position.

The Re P Guidelines
The case of Re P concerned an 8 year old Downs Syndrome child of Orthodox Jewish parents who had been placed with foster carers from the age of 17 months. The foster carers were practicing Catholics. Attempts to find an adoptive placement for the child consistent with her religious heritage failed. A residence order was made in favour of the foster carers when the child reached the age of four. When the child was 8 years old, the natural parents applied for a residence order, seeking the return of the child. At first instance, a residence order was made in favour of the foster carers, with contact to the natural parents together with an order under s91(14). The parents appealed against all orders.
In terms of the appeal against the s91(14) order, drawing on previous authority, Lady Justice Butler Sloss (Re P [1999] 2 FLR 573 at 592-4) set out guideline principles for the making of orders under s91(14). It is to be noted that these guidelines are, of course, subject to the wording of s91(14) itself. On the facts of Re P, an order under s91(14) was held to be justified.

The Re P guidelines can be summarised as follows. Applications under s91(14) are applications to which the welfare principle applies. The grant of such applications is a matter for the Court's discretion, but given the restrictions that it brings, it is a power which is to be used sparingly. Its use must be proportional to the harm it seeks to prevent. Whilst it is most obviously of application in cases where there have been repeated, unmeritorious applications, such orders can be made in the absence of such a history provided that certain conditions were met. These essentially are that the case must go beyond the more common situation that warring parties need time to settle into a court imposed regime, and that without such an order, the child or primary carers would be subject to unacceptable strain. Such orders may be made without limit of time and it would be undesirable, save in the most exceptional circumstances, for the order to be made ex parte. Express consideration was also given to the compatibility of s91(14) to the European Convention of Human Rights (later embodied in the Human Rights Act 1998), particularly with respect to Article 6. It was held that as the orders were not an absolute bar on a party's access to the court, that appropriate applications would be granted leave , given the harm that such orders are intended to prevent, there was no issue of incompatibility.

Subsequent Developments
Attaching Conditions to s91(14) Orders
Clearly, s91(14) orders remain the exception rather than the rule and often arise in matters where some form of therapeutic intervention in respect of the respondent would be beneficial, or even an essential prerequisite, to any application to vary the existing s8 order. It will be open to the Court to consider on any application for leave following the making of a s91(14) order, the extent to which any issues in respect of the Respondent's conduct identified within the substantive proceedings have been addressed.

However, to make it a condition that such issues be addressed before granting leave has been held to be a step too far. In the case of Stringer v Stringer [2006] EWCA Civ 1617, a s91(14) order had been imposed on the father, restricting applications by him for residence or contact to the children until they reach the age of 16. A condition of this order was that leave would only be granted upon the father producing a psychological or psychiatric report confirming that the author had seen the report of the children's guardian in that case and that the father had engaged in treatment. The father appealed. In granting the appeal, Lord Justice Wall was careful to draw a distinction between such conditions and a judge simply stating to a party that leave is unlikely to be granted unless particular issues are addressed. These matters were also examined in the case of S (Children) [2006] EWCA Civ 1190, which dealt with the application by two fathers for permission to appeal the making of s91(14) orders, including the order substantively considered in Stringer.

The key, therefore, in making such orders under s91(14) is whether any court dealing with the application for leave will be bound in the exercise of its discretion by the terms of the order.

It is permissible to attach conditions to an order under s91(14) with respect to its duration and the nature of the applications that it is intended to cover. As is evident from Re P, the Court may in principle impose an order without duration, however such an order can only be made in the most exceptional circumstances. Since the judgment in Re P, further judicial consideration has been given to the length of orders and in particular, with respect to orders made lasting the duration of a child's minority.

It was noted in S (Children) [2006] EWCA Civ 1190 that reasons must be clearly given for orders made without limit of time. Orders of such extensive duration will again be the exception rather than the rule and must be compatible with the primary objective of restoring a relationship between parent and child (Re B Section 91(14) Order. Duration [2004] EWCA Civ 1996). In this particular case, an order under s91(14) had been made where the father had sought for a number of years to have contact to his daughter, who was 9 at the time of the application. The child's views in respect of contact were held to have been strongly influenced by those of her maternal family. Indirect contact had been ordered in such a form as to attempt to change the view of the child. It was held on appeal that whilst an order under s91(14) may not have been wrong in principle, to make such an order for the duration of the child's minority was felt on appeal to send the wrong message.

When seeking such an order, it is worth noting that the order under s91(14) simply prohibits applications made without leave, and is therefore arguably not an absolute prohibition. The court will, in cases where there is sufficient merit, permit an application to proceed. This may mitigate against concern with respect to duration, however the measures that are taken must be proportionate.

Formalities and Notice of Applications
Given the restrictive nature of orders under s91(14), it is essential that ample notice is given to respondents. Re P itself makes it clear that whilst the Court may, of its own motion make an order under s91(14), this was subject to the rules of natural justice. Any order sought without an application issued in advance and without supporting evidence should only be granted in exceptional circumstances. This was noted in Re C-J (Section 91 (14) Order) [2006] EWHC 1491 (Fam), which dealt with an appeal by the father of a child against an order preventing such applications for a period of 12 months during ongoing proceedings. In that case, an order under s91(14) had been made of the court's own motion and without hearing evidence. Whilst the order was one which may have reasonably been within the contemplation of the court on its particular facts, and made by a Judge who had significant involvement in the case, Coleridge J held that exceptional circumstances were required before the Court could dispense with the usual procedural step of a formal application.

The requirement of notice is particularly important where the order is sought against a litigant in person. It has been held to be wrong in principle for such an order to be made against such a litigant without sufficient notice (see Re C (Prohibition on Further Applications) [2002] EWCA Civ 292).

Note, however that "informal" notice by way of a recommendation in the Guardian's report and an oral indication at an earlier hearing that such an order would be sought was held to be sufficient on appeal in Stringer (above). The circumstances identified as relevant in this regard were that the father had in fact applied at the same hearing as the one at which the s91(14) order was made for leave to withdraw his application for residence, and had not engaged with the professionals in the case in any event. Accordingly, the exercise of the Judge's discretion on those facts was not wrong in principle.

The Application for Permission
Whilst this was not strictly considered within the Re P guidelines, it is useful to note that the Court of Appeal in S (Children) [2006] EWCA Civ 1190 (above) gave express consideration as to whether a resident parent needed to be served with the application for permission to apply following an order under s91(14). Whilst endorsing the previous authorities which confirmed the importance of ensuring a fair, on notice hearing when the initial order is sought, there would be nothing wrong in principle in sensitive cases to direct that any later application for permission be initially considered by a Judge on paper, in order that the Court may determine the need for service on the other side. This would be of particular use in circumstances were the application for permission is without merit and service would be particularly destabilising for the family.

Whilst there has been development in the law relating to orders under s91(14), since the Guideline case of Re P, such developments have remained true to those principles. Applications under s91(14) remain the exception rather than the rule and scrupulous care must be taken to ensure that such applications are brought and heard fairly, without limiting more than is necessary in the interests of the child the right of parties to access the court.