B v B

In deciding residence, each child’s welfare must be assessed individually. Siblings should ordinarily be raised together, but that is not an absolute rule. The Court of Appeal should not interfere with a discretionary residence decision unless the judge was plainly wrong or committed an error of principle. Regular contact may mitigate the effects of separate residence, but it is not equivalent to living together.

An order under the Children Act 1989, section 91(14), is exceptional. Acrimony, suspected parental influence, or a wish to bring proceedings to an end is insufficient. The order requires clear evidence that a parent has moved from making proper applications to making unreasonable, oppressive or potentially vexatious applications. The power must be exercised carefully and sparingly, and not merely in anticipation of future conduct.

The father appealed from a residence order made by His Honour Judge Price QC in the Neath and Port Talbot County Court on 30 November 1995. The order required the youngest child, J, to live with his mother, while an older brother lived with the father. The judge also directed under section 91(14) of the Children Act 1989 that the father could not make further applications without leave.

The father argued that the children should live together and that frequent contact could not replace shared residence. He also challenged the restriction on future applications. The central issues were whether the residence decision was plainly wrong and whether the evidence justified the exceptional procedural restriction.

1. Residence order. Butler-Sloss LJ held that the appellate question was whether the judge had been plainly wrong in exercising his discretion. The Court of Appeal was not entitled to substitute its own view merely because the decision might have gone either way. There was no error of principle, no failure to consider a material matter, and no improper consideration.
2. The ordinary importance of siblings living together had been properly recognised. However, each child had to be considered independently. J was younger, immature, principally cared for by his mother, and had a settled relationship with her. The judge was entitled to conclude that moving him would be damaging, even though his brother lived with the father. The children’s close proximity and regular contact would mitigate the sadness of separation, but the judge had not treated contact as a substitute for shared residence.
3. Section 91(14). The order was a different matter. Butler-Sloss LJ applied the approach in Re H (Child Orders: Restricting Applications) [1991] FCR 896 at p 899. Section 91(14) is directed to applications which should not be made, not merely to parental bitterness, divided loyalties, suspected influence, or conduct which is harmful to children. It is an exceptional power that interferes with a parent’s right of access to the court. There must be a clear evidential basis, and the power must be used carefully and sparingly where applications have become unreasonable, oppressive or potentially vexatious.
4. The father had not crossed that threshold. The order had been made in anticipation of possible future behaviour, although his existing applications were properly made. The section 91(14) direction was therefore premature and plainly wrong.
5. Waite LJ agreed with the dismissal of the residence appeal and the allowance of the section 91(14) appeal. He added that section 91(14) should be read with section 1(1) of the Children Act 1989: the court should ask whether the child’s best interests require interference with the parent’s fundamental freedom to raise welfare issues before the court.
6. Orders. The residence appeal was dismissed. The section 91(14) appeal was allowed and the direction was set aside. There was no order as to costs, apart from legal aid taxation of both parties’ costs.

1. Court of Appeal (Civil Division): The appeal against the residence order was dismissed. The appeal against the section 91(14) direction was allowed, and the direction was set aside.
2. Neath and Port Talbot County Court: On 30 November 1995, His Honour Judge Price QC ordered that the youngest child should live with his mother and imposed the section 91(14) restriction.