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Section 91(14) Orders – A Never Ending Story?

Lucy Reed, Barrister, of St John’s Chambers, Bristol, reviews recent examples of the court’s application of section 91(14)

Lucy Reed, Barrister, of St John's Chambers

The making of orders pursuant to Section 91(14) Children Act 1989, colloquially referred to as barring orders, is a judicial act that seems very often to result in orders overturned on appeal and tickings off about procedural fairness.

It is often said by appellate courts (or by counsel opposing the making of such an order) that these orders are "draconian", but they are of course not an absolute bar; they do no more than require an application for permission to be made before further proceedings can be set in train. If there has been a genuine and substantial change in the circumstances that underlay the barring order that permission may well be forthcoming.

There are a number of recent authorities in which s91(14) orders have featured (and been overturned), and these are reviewed below. However, in many of the recent cases the s91(14) issue was somewhat ancillary to other primary issues on appeal – these cases therefore offer little in the way of new law specifically pertaining to s91(14). In the main recent authority is primarily of interest as illustrative examples of the application of pre-existing principle.

When can an order appropriately be made?
Authority is clear that the court should not make a barring order unless both parties have been given advance warning and an opportunity to tell the court what they think about the suggestion, particularly if they do not have a lawyer. There are many examples, but three such instances are: In The Matter of G [2008] EWCA Civ 1468, Re A (A Child) [2009] EWCA Civ 1548 (where the court cautioned against the making of these orders summarily), and In the matter of C (A Child) [2009] EWCA Civ 674, which deals particularly with the signal importance of adopting the correct procedural approach to making of orders against litigants in person.

In Re P (A Child) [1999] EWCA Civ 1323 Butler Sloss LJ set out some useful guidelines, which are still applicable. In summary: in cases where there have been repeated and unreasonable applications a barring order is a weapon of last resort, although where the welfare of the child requires it orders can be made notwithstanding the absence of such features (for example where there was a serious risk a primary carer would be subjected to unacceptable strain). In addition, that judgment tells us that an order may be imposed by the court of its own motion and may be imposed with or without limit of time. Ex parte orders would be appropriate in only the most exceptional of cases.

Duration and terms of order
The court must say how long the bar will last for. Although it can say that it will last for an indefinite period this would need to be justified and reasoned. One case where, exceptionally, it was held appropriate to make an order until a child's eighteenth birthday was Re J (A Child) [2007] EWCA Civ 906.

The order may be expressed to apply to all applications or to applications of a particular kind. Although the judge may state what should be addressed before the court is likely to agree to let another application proceed (and may record this in a recital) she cannot attach conditions to the bar (See S (Children) [2006] EWCA Civ 1190 and Stringer v Stringer [2006] EWCA Civ 1617).

There are rather fewer cases dealing with permission applications after the making of a s91(14) barring order. One relevant authority is: In the matter of S (Children) [2006] EWCA Civ 1190.

The test on an application for permission is as set out in Re A (Application for Leave) [1998] 1 FLR 1: 'Does the application demonstrate any need for renewed judicial investigation?' Or 'Is there an arguable case'. In Re S the court confirms that there is no discrepancy between the two ways of expressing this test, the hurdle is not formidable and in essence all the applicant has to demonstrate is that his substantive application is not hopeless (see paras 53-55).

The proper procedure to follow is to issue a C2, attaching a draft application and copies for service. The court will either grant the application on paper or will fix a hearing to determine it (para 66). The applicant is entitled to an oral hearing if he so requests.

An applicant will need to demonstrate how he has addressed the conduct which led to the s91(14) bar being imposed (para 78).

The judgment in Re S is clear that in some cases there may need to be directions to obtain further evidence prior to the determination of the permission application (para 81-82).

It is also clear from Re S that exceptionally an application for permission may be made ex parte. For example where the respondent is known to be vulnerable to the stress of proceedings and the s91(14) order has been made with that in mind. This will enable the court to filter any application, for example to scrutinise what change the applicant has been able to effect since the order was made, before causing the anxiety that is likely to arise from the giving of notice.

Recent cases
In Re A B & C (Children) [2010] EWCC 30 (Fam) (Pilot scheme county court judgment) the local authority, with the support of the guardian, sought a s91(14) order preventing the mother from making further applications to discharge a care order. The judge declined at that stage to make an order, adjourning the s91(14) application and the mother's application to discharge for a short period pending the resolution of contact issues which were still live, noting that with the benefit of judicial continuity any further unmeritorious discharge applications could be dealt with summarily.

G (A Child) [2010] EWCA Civ 470 (13 January 2010) is an example of a barring order imposed for a five year term in respect of contact to a three year old girl, alongside an order for indirect contact only. That was held to be an excessively long period given the child's age and was reduced to two years on appeal. The case raises no new point of principle, and indeed Thorpe LJ was in part supportive of the appeal on the basis that the facts on the ground had changed (in that the father had since the first instance decision become resident in the jurisdiction, thereby removing the geographical barrier to contact that had previously existed).

In S (A Child) [2010] EWCA Civ 219 (21 January 2010) the court declined to make a s91(14) order, but it is noted as an instance of an intractable contact dispute involving evidence of parental alienation where the court made an order changing residence from the mother to the father. The mother had opposed any direct contact and sought a conclusion to proceedings and a s91(14) order. As was subsequently explained in a later judgment in the same case (Warwickshire County Council v TE & Ors [2010] EWHC B19 (Fam) (11 August 2010)) the attempt to change residence failed, and ultimately the child was returned to the mother under a residence order. At that stage all routes had been exhaustively explored and a s91(14) order was made against both parents.

In A Father v Lancashire County Council [2010] EWHC 2503 (Fam) (30 July 2010) a "garrulous" and "egocentric" father who had made a number of applications including freestanding human rights claims and who objected to the principle of a s91(14) order was permitted to undertake instead not to issue any application for contact with one child before his sixteenth birthday. In respect of a second half sibling the court dismissed all of the father's divers applications (discharge of care order, human rights claims, and s8 applications). Whilst there had been protracted litigation, numerous applications and some stress on the carer of the child as a result, the judge was persuaded to step back from a barring order on the basis that any future application (whilst strongly discouraged) should be listed before him and would be anxiously scrutinized. The facts of this case are complex and the judgment lengthy, and it can only be imperfectly summarized in the space available here.

H (A Child) [2010] EWCA Civ 1296 (26 October 2010) is an unusual decision, not because the court granted permission to appeal on a limited basis, namely in respect of the courts failure to specify the ambit or duration of the barring order, but because the court gave an indication of the sort of duration that might be appropriate and directed that the appeal should not proceed until mediation had been attempted by the parties on the points outstanding.

The case of W (A Child) [2010] EWCA Civ 1449 (29 October 2010) is of little assistance since, although the s91(14) order was overturned on appeal, this arose from the fundamental procedural flaw in that the father had not been permitted to cross examine the guardian and the whole matter was remitted. The court avoided expressing any view on the appropriateness of a s91(14) order.

In Re K (Children) [2010] EWCA Civ 1365 (02 December 2010) was a clear case of a s91(14) order wrongly made by a district judge and which the circuit judge ought to have categorized as plainly wrong. The judge in that case had summarily dismissed the father's application for contact in the absence of compelling reasons to deprive the children of a relationship with him. That case is no more than an application of previous authorities to stark facts.

The case of Re T (A Child- murdered parent) (2011) EWHC B4 (Fam) (8 March 2011) is in fact most interesting for the use of a non-molestation order (with all the serious criminal sanctions that arise from a breach of the same) to get around the lack of jurisdiction to make an occupation order (whilst in the writer's experience the incorrect labeling of what ought to be an occupation order as a non-molestation order is not uncommon it is rarely expressly so – although see the more detailed examination of the basis of and jurisdiction for the injunction in Re T offered by Andrew Willetts in his article on this case). In that case the father had murdered the mother and the child was living with an aunt. Whilst the father consented to a s91(14) order until the child's thirteenth birthday the court ordered that the prohibition should extend until the child was sixteen for fact specific reasons.

In B (Child) [2011] EWCA Civ 509 (11 March 2011) the Court of Appeal overturned a barring order made preventing the birth mother of an adopted child applying again for permission to make a contact order application for two years. The real question on the permission application was whether there was any principled basis upon which it could have be refused. Since the local authority's case comprised the submission that the case warranted further investigation, albeit that they said this should not take place within the court arena, it could not be said that there was a proper basis for refusing permission. That being so, the barring order which had followed on from the refusal of permission was discharged and permission granted. An important factor in that case was that there was an un-adopted sibling still cared for by the mother whose own article 8 rights in connection with his brother were engaged.

Finally, in another case called Re K (Children) [2011] EWCA Civ 635 (25 May 2011) the Court of Appeal upheld a s91(14) order against the parents, which had been made alongside a special guardianship order in favour of the maternal grandmother and which was to last for two years and four months. Although there was no history of repeated applications there had been protracted proceedings and the judge had concluded that the welfare of the child required a period of calm in her placement which, on the facts of this case (lying, manipulative parents whose behavior had complicated the proceedings and who were already indicating an intention to make further applications), the court could not be satisfied would occur in the absence of an order.

What can be seen from the recent authorities is a pattern of s91(14) orders as a feature of overly zealous attempts to conclude litigation, often coupled with the dismissal of applications for contact or change of residence arrangements, and therefore several examples of barring orders falling away when the judicial approach to the main application has been overly harsh or has fallen foul of human rights arguments. It is of particular note that a number of the examples given above involve the court imposing, in effect, double insulating against future applications – by imposing a barring order in circumstances where the subject of it would in any event require the permission of the court before being able to proceed with a substantive application. It could be observed that this appears to occur surprisingly often given the numerous occasions on which the Court of Appeal has had cause to reiterate now long established principles and core rights.

What also begins to emerge is the prospect of praying in aid the Family Procedure Rules 2010, particularly the overriding objective and the court's case management duties (r 1.4 FPR 2010) to argue that the use of s91(14) is not necessary and therefore not justified: the court now has, for example, a duty "to decide promptly which issues need full investigation and hearing and which do not; and the procedure to be followed in the case" (r1.4(2)(c)). Those powers lend themselves to providing a more bespoke alternative in many cases to the draconian barring order. Judicial continuity and pro-active case management ought in many cases to be sufficient protection: Baker J evidently thought it appropriate in the Lancashire case (above: [2010] EWHC 2503 (Fam)), notwithstanding the protracted and troubling history of that case. The writer appreciates that this case predated the implementation of the Family Procedure Rules, however the new rules are in many respects simply a codification of the pre-existing and developing case management practice that has grown up in recent years, and a mechanism for empowering judges to case manage yet more effectively.

23rd June 2011

Lucy Reed is the author of Family Courts without a Lawyer: A Handbook for Litigants in Person (Bath Publishing).