P-B (A Child), Re

A restriction requiring leave before further applications under section 91(14) of the Children Act 1989 is not justified merely because future litigation appears unlikely to be useful or burdens the primary carer. Where there is no history of unreasonable applications, the court must be satisfied that the facts go beyond ordinary difficulties in settling a court-ordered regime and common adult animosity. It must also find a serious risk that, without the restriction, the child or primary carer will suffer unacceptable strain. Clear notice and an opportunity to respond are sufficient procedural safeguards. The court need not invite submissions on authorities or reopen the issue after issuing a draft judgment.

Dr P appealed from an order made by Bennett J in the High Court Family Division on 2 July 2003. Under section 91(14) of the Children Act 1989, the order prevented him from making further applications concerning his child’s residence without leave. The respondent mother had sought the restriction, relying on the burden of continued litigation and its effect on herself and the child. Dr P argued that the application was procedurally defective because no Form C2 had been filed or fee paid, and that the order lacked a sufficient substantive basis. The central issue was whether the order satisfied the guidance in Re P.

Disposition

The appeal was allowed and the section 91(14) order was set aside. There was no order for costs.

1. Procedure. The respondent had given clear notice of the application and its grounds. Dr P had a proper opportunity to address it, but elected to respond principally by asserting that the application was inappropriate. The judge was not obliged to invite him to address the authorities. Nor was the judge required to reopen the issue after making his draft judgment available and explaining his proposed reasoning.
2. Applicable guidance. The court applied the guidance in Re P [1999] 2 FLR 573. Although a restriction may be imposed without a past history of unreasonable applications, the court must be satisfied that the facts go beyond the ordinary need for time to settle a court-ordered regime and ordinary animosity between the adults or between a local authority and family. It must also be satisfied that there is a serious risk that, without restriction, the child or primary carer will be subject to unacceptable strain.
3. Application. Bennett J had largely recited the parties’ positions but had made no findings about Dr P’s assurance that there would be no further unreasonable application. He had also made no findings about the alleged effect of the proceedings on the child or the mother, and had not identified or developed any serious risk of unacceptable strain. The requirement was therefore not met. Scott Baker LJ agreed that the order was inadequately reasoned and unjustified in the absence of any history of unreasonable applications.

The court noted that the result was largely academic in practical terms, but it removed any possible implication that the order constituted criticism of Dr P’s professional responsibility.

1. Court of Appeal (Civil Division) — On 11 November 2003, allowed the appeal and set aside the order: [2003] EWCA Civ 1827.
2. High Court Family Division — Bennett J made the section 91(14) order on 2 July 2003, restricting further applications concerning residence without leave.