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Section 91.14 Case Law

Section 91.14 Case Law

Section 91.14 orders (made under section 91.14 of the Children Act 1989) place restrictions upon making further applications to the family court.

The making of such orders is subject to guidance in case law.

We provide the full text of judgments when they have been placed in the public domain, and provide links to full text in both html and PDF formats (if print versions are required to support arguments for use in court). Brief summaries and links to full text are provided below.

Also refer to our guide on section 91.14 orders.

The then President of the Family Division, Butler-Sloss, gave guidance in respect of section 91.14 orders:

Section 1(1) of the Children Act (making the welfare of the child the paramount consideration) should be read in conjunction with section 91.14 when considering whether to make a section 91.14 order;

The making of a section 91.14 is within the judge´s discretion having weighed all the relevant circumstances and with great care;

It is appropriate in cases of repeated and unreasonable applications, as a last resort;

The degree of restriction should be proportionate to the harm it is intended to control;

The test for granting permission to apply for a further order after s91(14) is imposed is whether there is an arguable case.

It is wrong in principle to make a section 91.14 order against a litigant-in-person without them being given sufficient notice.

Appeal allowed “I have concluded that the judge failed to make a finding or sufficiently reasoned finding on alienation by the mother or to make it clear that he was not making such a finding”. There was a serious breakdown in the child/father relationship and the judge failed in his quasi-inquisitorial duty to assess the origins of the breakdown.

Paragraphs 37 to 40 discuss the circumstances upon which a s.91.14 order may be made to give the parties a break from litigation. Dame Elizabeth Butler-Sloss states in those paragraphs:

“38. In making those observations and in imposing a one year restriction on the father, the Recorder failed to have regard to the guidelines laid down in this Court in several decisions, principally in re P (a child) residence order: child’s welfare) [1999] 2 FCR 289 at pages 310 et seq; re C (children: contact) [2002] EWCA Civ 292; [2002] 3 FCR 183; re G (a child) (contempt: committal order) [2003] EWCA Civ 489; [2003] 2 FCR 231 paragraphs 35-37. I said in re P, at page 310, that section 91(14) should be read in conjunction with section 1(1). In re G, I summarised the guidance at paragraph 36

“It is a discretionary power to be used in the best interests of the child concerned. It is a draconian order to be used with great care and sparingly. Its use must be proportionate to the harm it is intended to avoid.”
39. There will be cases where a breathing space is needed, even though the parent against whom the order is made, has not behaved unreasonably. In re P, in guideline (vii) I said that in such a case:

“the court will need to be satisfied first, that the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the court and the all too common situation where there is animosity between the adults in dispute or between the local authority and the family and secondly, 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.””

Note… a s91.14 order is a DRACONIAN ORDER.

A Section 91.14 Order had been made restricting the father from applying for residence or contact until the children reached the age of 16. The trial judge had set conditions before permission to apply would be granted in the future. The conditions were that prior to future applications being considered, the father must produce a psychological report confirming he had sought treatment for matters raised in the Guardian´s report (which the psychologist must be shown). There is a difference between a judge commenting on circumstances which might make the granting of permission to make an application more successful, as opposed to the judge setting conditions. The trial judge had gone too far.

In the permission to appeal hearing (see Re S (Children) and E (A Child) [2006] EWCA Civ 1190 linked below) Lord Justice Wall considered:

Is it permissible for the court, when making a section 91(14) order), to impose conditions on the order, restricting or otherwise identifying the circumstances in which an application for permission to apply can be made, and / or specifying the evidence which the applicant must obtain before such an application will be entertained?
The answer was no. If Parliament had intended Section 91.14 orders to allow for conditions, the Children Act 1989 would say so.

While no formal application for a Section 91.14 Order had been made, and no formal notice had been offered to Mr Stringer, informal notice had been given by way of his having been notified by the Guardian´s solicitors that it was the Guardian´s intention to request that a Section 91.14 Order be made.

Note: It is permissable for a court to specify a time limit for a s91.14 order and to limit the need for permission to apply to certain types of application.

Judgment in Respect of Permission to Appeal – Re S (Children) and E (A Child) [2006] EWCA Civ 1190

Judgment in Respect of Appeal – Stringer v Stringer [2006] EWCA Civ 1617

Proper notice had not been given that a Section 91.14 Order might be made. It was reiterated that such applications need to be properly notified to the parties, and that the requirement for notice can only be ignored in exceptional circumstances. The District Judge had also gone too far in making this order, which was made without evidence having been heard.

The court must be satisfied that the facts of the case go beyond those commonly encountered of parental animosity and that there is a serious risk that, without the imposition of the restriction, the child and/or the primary carers will be subject to unacceptable strain.

It is worth noting the guidance given by Sir Nicholas Wall, President of the Family Division of the Court, at paragraph 13 of the judgment:

“Ideally, such an application should be made in writing on notice in the normal way. The court can then, having heard all relevant submissions, make an order one way or the other.

There will, however, be cases in which the question of a section 91(14) order arises either during or at the end of a hearing. It may arise on the application of one of the parties, or on the court´s own initiative. One or more of the parties before the court may be unrepresented.

In the circumstances identified in paragraph (2), the court may make an order under section 91(14). It is, however, of the utmost importance that the party or parties or other persons affected by the order, particularly if they are in person: (a) understand that such an application is being made, or that consideration is being given to making a section 91(14) order; (b) understand the meaning and effect of such an order; and (c) have a proper opportunity to make submissions to the court in answer to the application or to the suggestion that a section 91(14) order be made.

Where the parties (and in particular the person affected by the section 91(14) order) are unrepresented, it may be possible for the court to deal with the matter in argument without a formal application, although if the representative for the party affected seeks a short adjournment to take instructions, such an application should normally be granted. If there is a substantive objection to the section 91(14) order, then the court should require the application to be made formally on notice in the normal way.
Where the party affected by a proposed section 91(14) order is in person it is particularly important that he or she (a) understands the effect of such an order; and (b) is given a proper opportunity to respond to it. This may mean adjourning the application for it to be made in writing and on notice.

Where the parties are both or all in person, there is a powerful obligation on any court minded to make a section 91(14) order to explain to them the course the court is minded to take. This will involve the court telling the parties in ordinary language what a section 91(14) order is; and what effect it has, together with the duration of the order which the court has in mind to impose. Above all, unrepresented parties must be given the opportunity to make any submissions they wish about the making of such an order, and if there is a substantive objection on which a litigant wishes to seek legal advice the court should either normally not make an order; alternatively it can make an order and give the recipient permission to apply to set it aside within a specified time.”

It is worth noting Wilson LJ´s comments at paragraph 16:

“16. In relation to the proposed appeal against the order under s.91(14) of the Act, I would grant permission, allow the appeal and set aside the order. There is a view among some family lawyers that the requirement of leave to make an application is a reasonable feature of many branches of the law and may be particularly valuable in family proceedings and that it casts no undue hardship upon a parent (or other person) to be required to show to the court an arguable case in support of a proposed application under the Act before being permitted to make it. Indeed I myself might, in other circumstances, have had some sympathy for that view. But that view is, as all we family lawyers know, emphatically not the view taken in our jurisprudence about the circumstances in which it is appropriate to make an order under s.91(14) of the Act. Ever since the enunciation by Butler-Sloss LJ of 11 guidelines in Re P (s.91(14)) (Residence and Religious Heritage) [1999] 2 FLR 573 at 592H to 593F, we have known that the power to make such an order is, pursuant to her fourth guideline, to be used with great care and sparingly and is, pursuant to her fifth guideline, generally to be seen as a weapon of last resort in cases of repeated and unreasonable applications.”

Imposing a s91.14 restriction for a period of 5 years was held to be an excessive length of time and was reduced to two years on appeal. The facts of the case also played a part in the decision of Thorpe LJ

The father’s application for contact had been dismissed, yet there were insufficient reasons for such a decision. Despite the fact there was no written application for a s91.14 order, the order was granted. A clear case where the trial judge was plainly wrong. The trial judge dismissed the father’s application as he wrongly deemed that there was no prospect of success. The father’s appeal in the country court was successful, and the mother’s further appeal to the Court of Appeal was rejected.

The appeal court upheld the making of a section 91.14 order against the parents. This is a case where special guardianship had been granted in the grandparents’ favour, the parents’ lying had complicated the case, and a court determined that a period of calm would be beneficial.

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