S (Children)

A court making an order under section 91(14) of the Children Act 1989 may specify its duration and the applications covered. It cannot impose conditions governing a future application for permission.

Permission requires an arguable case with some chance of success and a demonstrated need for renewed judicial investigation. An applicant must address the conduct and findings that led to the restriction. Where necessary evidence requires access to the court papers, the court may adjourn the permission application and direct that evidence be obtained.

An order lasting indefinitely or until the child is 16 should be exceptional, proportionate and fully reasoned. The affected person must be heard before the restriction is imposed. A permission application may initially be considered without service and on paper, but an applicant seeking an oral hearing should receive one.

The court heard together two applications concerning restrictions imposed under section 91(14) of the Children Act 1989.

In the first case, Mr Everett appealed against Judge Murdoch QC’s refusal to permit a renewed contact application concerning his daughter. An earlier order had restricted applications without limit of time following serious findings about his violence, controlling behaviour, breaches of undertakings and inability to prioritise the child’s welfare. He relied on changed personal circumstances, but supplied no expert evidence or adequate acknowledgement of the earlier findings.

In the second case, Mr Stringer sought permission to appeal against an order lasting until his children were 16. It required a psychological or psychiatric report showing treatment and progress before any application could be made.

The central issues were whether conditions could be attached to a section 91(14) order, the threshold and procedure for obtaining permission, the proper duration of restrictions, and the notice and hearing required.

1. Disposition. Mr Stringer received permission to appeal against the section 91(14) order in its entirety. Mr Everett received permission to appeal, but his appeal was dismissed.

2. A section 91(14) order may identify its duration and the kinds of application restricted. It cannot impose further conditions. The power in section 11(7) of the Children Act 1989 to attach conditions applies to section 8 orders, not section 91(14) restrictions. Section 91(14) is a statutory restriction on access to the court and must be applied as enacted. A condition requiring treatment or specified expert evidence could create the absolute prohibition which the provision does not authorise. Judge Mitchell therefore lacked power to make treatment and psychiatric or psychological evidence preconditions to Mr Stringer’s future application.

3. The tests in Re A (Application for Leave) and Re P (A Minor) (Residence Order: Child’s Welfare) are complementary. An applicant must demonstrate a need for renewed judicial investigation by presenting an arguable case with some chance of success. Granting permission does not confer a right to a full trial.

4. Where the restriction arose from particular conduct, the applicant must address that conduct and the court’s earlier findings. This is an evidential requirement affecting the merits of permission, not a condition preventing an application from being made.

5. If the court lacks sufficient information, it may adjourn the permission application and direct the acquisition of necessary evidence. An applicant who requires expert examination of court papers should seek those directions before the permission application is determined. A treating clinician and a forensic expert perform different functions.

6. Restrictions lasting indefinitely or until the child is 16 are lawful, but should be exceptional. Their extent and duration must be proportionate to the harm addressed, and the reasons must be stated fully. The court should consider whether a defined period could permit later investigation and restoration of a safe parent-child relationship. An enduring restriction is appropriate only where the welfare consequences justify bringing litigation to an indefinite halt.

7. The person affected must have a proper opportunity to consider and oppose a proposed section 91(14) order. By contrast, a permission application may initially be considered without service on the respondent and on paper where service might destabilise the family. The judge must decide whether service and an inter partes hearing are required. An applicant dissatisfied with a paper refusal should receive an oral hearing if requested.

8. Mr Everett had not adequately recognised the seriousness or effects of his earlier conduct. His changed domestic circumstances did not establish an arguable case or a need for renewed investigation. Judge Murdoch’s refusal was therefore a proper exercise of discretion, although a future application remained open if supported by appropriate evidence.

1. Court of Appeal (Civil Division): In [2006] EWCA Civ 1190, the court granted Mr Stringer permission to appeal against the section 91(14) order. It granted Mr Everett permission to appeal but dismissed his appeal.

2. Canterbury County Court — Mr Everett: Judge Murdoch QC refused permission to apply for contact, refused an adjournment for expert evidence and refused permission to appeal. The underlying section 91(14) order had been made by Judge Hargrove QC without limit of time.

3. Canterbury County Court — Mr Stringer: Judge Mitchell made a section 91(14) order lasting until the children were 16 and attached requirements concerning treatment and psychiatric or psychological evidence. Black J subsequently refused permission to appeal.