B (a child), Re

An order under section 91(14) is exceptional. It should not ordinarily be made by the court on its own initiative without giving the person to be restrained a proper opportunity to make submissions. This safeguard is particularly important where that person is acting in person. A procedurally flawed order may also be inappropriate where the underlying application does not justify restricting future applications. An appellate court may leave a technically deficient costs order undisturbed where independent consideration shows that no injustice has resulted and remittal would serve no practical purpose.

The father sought permission to appeal orders made by His Honour Judge McKittrick in the Peterborough County Court on 21 November 2001. Permission was granted and the application proceeded as an appeal.

The underlying applications concerned an injunction against the mother, her partner and her solicitor, and a specific issue order seeking access to the child’s medical records. The judge dismissed both applications, then made an order under section 91(14) without prior notice or submissions, and ordered the father to pay £1,500 costs. The appeal concerned whether the section 91(14) order and the ancillary costs order had been properly made.

1. Appeal allowed in part. The order under section 91(14) was set aside. The £1,500 costs order was left undisturbed, and there was no order as to the costs of the appeal.
2. The guidance in Re P (Section 91 (14) Guidelines) [1999] 2 FLR 573 established that section 91(14) orders are the exception rather than the rule. A court should not make such an order of its own motion without giving the affected party a proper opportunity to make submissions. That requirement is especially important where the party is a litigant in person.
3. The judge’s order was procedurally flawed because it was announced without prior introduction after the father’s applications had been dismissed. It was also inappropriate on the facts. The father had complied with an earlier period of restraint and had sought information about the child rather than an extension of his relationship with her. The order therefore resulted from judicial misdirection.
4. The costs application had not been presented with sufficient particularity. The judge had not distinguished between the injunction and specific issue applications, or between solicitors’ and counsel’s costs, and appeared not to have investigated whether the global sum amounted in substance to indemnity costs.
5. Nevertheless, the Court of Appeal exercised its judgment not to interfere with the costs order. The injunction application was plainly unwarranted, £1,500 was a modest sum for resisting it, and remitting the matter for assessment would add expense and delay without producing a practical benefit.

• Court of Appeal (Civil Division): permission to appeal granted and appeal allowed in part. The section 91(14) order was struck from the amended order of 21 November 2001. The costs order remained in force.
• Peterborough County Court: His Honour Judge McKittrick dismissed the father’s injunction and specific issue applications, made a section 91(14) order, and ordered payment of £1,500 costs.