In family disputes the Court may be asked by one of the parties or the Judge may consider it appropriate, to make an Order providing further applications (by anyone or by one of the parties) can only be made if the Court first grants leave. This is usually when Court proceedings have lasted for a long time or involved numerous different proceedings.
Section 91(14) Children Act 1989
The law applicable to S.91(14) orders
S.91(14) states: ‘On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) 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’.
In Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573, CA, Butler-Sloss LJ drew up a number of guidelines from the reported cases, while indicating that the court always has to carry out a balancing exercise between the welfare of the child and the right of unrestricted access of the litigant to the court. The guidelines are as follows:
(1) Section 91(14) should be read in conjunction with s 1(1) which makes the welfare of the child the paramount consideration.
(2) The power to restrict applications to the court is discretionary and in the exercise of its discretion the court must weigh in the balance all the relevant circumstances.
(3) An important consideration is that to impose a restriction is a statutory intrusion into the right of a party to bring proceedings before the court and to be heard in matters affecting his/her child.
(4) The power is therefore to be used with great care and sparingly, the exception and not the rule.
(5) It is generally to be seen as a weapon of last resort in cases of repeated and unreasonable applications.
(6) In suitable circumstances (and on clear evidence), a court may impose the leave restriction in cases where the welfare of the child requires it, although there is no past history of making unreasonable.
(7) In cases under para 6 above, the court will need to be satisfied first that the facts go beyond the commonly encountered need for a breathing space; 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.
(8) A court may impose the restriction on making applications in the absence of a request from any of the parties, subject, of course, to the rules of natural justice such as an opportunity for the parties to be heard on the point. The Court should take extra care with parents who do not have solicitors acting for them.
(9) A restriction may be imposed with or without limitation of time. However, orders without limit or until children are 16 would need to be justified by exceptional circumstances.
(10) The degree of restriction should be proportionate to the harm it is intended to avoid. Therefore the court imposing the restriction should carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained and the duration of order
(11) It would be undesirable in other than the most exceptional cases to make the order when the parties are not present in Court and given proper opportunity for their views to be considered.
The commentary in the Family Court Practice continues:
Furthermore, Butler-Sloss LJ stated that in her view an absolute prohibition on making any application to the court could not be made under s 91(14). Additionally, a s 91(14) order did not infringe the HRA 1998 or ECHR 1950, Art 6(1) because it did not deny access to the court, only access to an immediate hearing.
An absolute ban could be made by the Court in exceptional circumstances under its inherent jurisdiction.
Imperative requirements—Before making a s 91(14) order, the court must be satisfied that the parties affected:
(i) are fully aware that the court is seised of an application and is considering making such an order;
(ii) understand the meaning and effect of such an order;
(iii) have full knowledge of the evidential basis on which such an order is sought; and
(iv) have had a proper opportunity to make representations in relation to the making of such an order; this may of course mean adjourning the application for it to be made in writing and on notice.
Loss of self-control—Where a party loses their temper in court and/or walks out of the hearing it is wrong, on this ground alone, to make a s 91(14) order against that party. The appropriate course is to allow the party time to repent and come to his/her senses by adjourning the matter for a minimum of 24 hours to ‘draw the party back into the proceedings and not to put a further barrier on his further engagement with the system’: Re M (Section 91(14) Order) [2012] 2 FLR 758, CA.
Litigants in person—The Court of Appeal has handed down guidance on the approach to be taken when considering making an order under s 91(14). It is of utmost importance that the party, 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 s 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. A request for a short adjournment to consider the position should normally be granted: Re C (Litigant in Person: s 91(14) Order) [2009] 2 FLR 1461, CA, at [13].
What happens if a parent subject to a s91(14) direction wishes to bring a matter to Court?
The test for granting leave is whether there is an arguable case with some chance of success. The application should demonstrate there is a need for renewed judicial investigation.
Where any of the provisions of s 91(14)–(17) requires the leave of the court to be obtained before a particular application under the Act may be made, leave should be sought in accordance with FPR 2010, Pt 18. The application for leave should be made in Form C2. If leave is granted, the applicant will proceed to issue an application for an order in Form C1.
