M (A Child)

An appellate court may uphold a restriction under section 91(14) of the Children Act 1989 where further litigation threatens a child’s stability. The power is a filter requiring permission, not an absolute prohibition. Any restriction must remain proportionate and should ordinarily have a temporal limit. Permission applications may be reserved to the judge familiar with the case, provided they are considered objectively. A further welfare report is not invariably required before varying residence. Robust case management does not establish bias where the judge confirms that disputed facts remain open and conducts a fair hearing.

The mother applied to vary an earlier order under which residence of her young son had been granted to the father. The Milton Keynes County Court dismissed the application, re-crafted contact arrangements, and made an order under section 91(14) of the Children Act 1989, requiring the mother to obtain leave before making further applications concerning the child. The order was indefinite and reserved leave applications to the trial judge.

The mother sought permission to appeal on residence, alleged bias, the refusal of a further CAFCASS report, and the section 91(14) order. The central issues were whether the residence decision and hearing were unsafe, and whether the statutory restriction was justified and proportionate.

1. Residence and alleged bias. Permission to appeal was refused in relation to residence. The judge’s comments at an earlier directions hearing were troubling when read alone, but the bias challenge was not sufficiently arguable in the case as a whole. The alleged bias should have been raised promptly so that the judge could consider recusal. More importantly, at trial the judge expressly stated that he had reached no conclusion beyond his assessment of the papers and that he retained an open mind on disputed facts. The parties then had a full opportunity to give evidence and be cross-examined.
2. CAFCASS report. A further CAFCASS report was not a prerequisite. The application principally sought to reopen the factual basis of the earlier order, while later changes of circumstance could be addressed through oral evidence. The judge was entitled to conclude that the central questions concerned the parents’ personalities, attitudes and proposed arrangements, matters within his own province.
3. Section 91(14). Applying the approach in Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573 CA, the judge had a wide discretion to protect the child from further residence litigation and to reserve leave applications to himself. Section 91(14) operates as a filter, rather than an absolute prohibition, and a genuine application on proper grounds must be considered.
4. The indefinite duration of the restriction was disproportionate. The order was varied so that the moratorium on further section 8 applications by the mother expired three years from 6 December 2005. The reservation to Judge Serota was upheld, subject to the order reflecting that it applied if he was available. There was no order for costs, apart from detailed assessment of the mother’s public funding certificate.

• Court of Appeal (Civil Division): Permission to appeal was refused in relation to residence and granted in relation to the section 91(14) order. The appeal was allowed only to impose a three-year limit, running from 6 December 2005.
• Milton Keynes County Court: His Honour Judge Serota QC dismissed the mother’s application to vary residence, re-crafted contact arrangements, made an indefinite section 91(14) order, and reserved leave applications to himself.