Section 91(14) of the Children Act 1989 allows the court to order that any further applications a party seeks to make in relation to a child or children may not be made without permission from the court.
This is to prevent unnecessary and disruptive applications being made and it means the party must first obtain permission from the courts.
Amendments were introduced via the Domestic Abuse Act 2021.
Not an absolute bar
S91(14) orders are not an absolute bar to a future application being made. They add a hurdle by requiring the court’s permission before an application can be made and so it has been held that a s 91(14) order does not infringe the Human Rights Act 1998 or European Convention on Human Rights, Art 6(1) (right to a fair trial).
The law does not provide a test for when orders should be made, but pursuant to the judgment of Butler Sloss LJ in Re P (Section 91(14) Guidelines (Residence and Religious Heritage) [1999] 2 FLR 573, the court must carry out a balancing exercise between the welfare of the child and the right of the parent. The judgment gives detailed guidance, which is the starting point for these applications, and which subsequent cases have developed.
Such orders are generally to be seen as a weapon of last resort in cases of repeated and unreasonable applications.
But a court may make a s 91 (14) order even though there is no past history of making unreasonable applications. The court will need to be satisfied:
That the facts go beyond the commonly encountered need for a time to settle so that any animosity between the adults can recede; and
That there is a serious risk that, without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain.
Duration
A restriction may be imposed with or without limitation of time. However, an order which is indeterminate or is to last until a child becomes an adult should be an exceptional step, taken only in the most dire cases to protect the child from conflict (Re J (A Child) (Restriction on Applications) [2007] EWCA Civ 906, [2008] 1 FLR 369 and Re G (Residence: Restriction on Further Applications) [2008] EWCA Civ 1468, [2009] 1 FLR 894).
If such an order is made the court must spell out why and what needs to be done to make a successful application in the future (Re S (Permission to Seek Relief) [2006] EWCA Civ 1190, [2007] 1 FLR 482).
In all cases the degree of restriction should be proportionate to the harm it is intended to avoid.
Although the court may state what should be addressed before it may grant permission for a future application to proceed, the court cannot attach conditions to the order requiring a party to take a specific step before an application can be made (see Re S (Permission to Seek Relief) [2006] EWCA Civ 1190, [2007] 1 FLR 482 and Stringer v Stringer [2006] EWCA Civ 1617, [2007] 1 FLR 1532).
If a parent is a Litigant In Person, The Court of Appeal has handed down guidance on the approach to be taken, the LiP must:
(a) understand that such an application is being made, or is being considered;
(b) understand the meaning and effect of such an order;
(c) has a full understanding of the evidential basis on which such an order is sought; and
(d) has a proper opportunity to make submissions to the court.
To obtain permission to issue a future application, the respondent to a s 91(14) order will have to show that he or she has an arguable case with some chance of success (Re P (Section 91(14) Guidelines) (Residence and Religious Heritage (above)).
In deciding whether to grant leave, the court will consider:
(a) the history of the case;
(b) any risk of potential harm to the child; and
(c) whether a change of circumstances has occurred since the last hearing that would warrant the grant of permission.
The application should be made by Form C2.
If you require further information about anything covered in this briefing, please contact John Brown.
This note is a general summary of the law. It should not replace legal advice on your specific circumstances