Stringer v Stringer

A court may make a section 91(14) order despite an absence of a formal application where the affected litigant had informal notice and, in the overall exercise of discretion, that procedure was fair. The court must have regard to the history and volume of proceedings, the effect on the children, and whether further litigation could advance their interests.

The restriction is procedural, not an absolute denial of access to the court. A long restriction, extending until a child is 16, may be justified by the welfare evidence and litigation history. However, the court has no jurisdiction to attach binding conditions to a section 91(14) order. It may instead give a non-binding indication of matters likely to affect a future application for leave.

In private law proceedings concerning two children, the father withdrew his application for residence and contact. The county court then made an order under section 91(14) of the Children Act 1989. It prevented further applications without leave until the children reached 16. It also required evidence of treatment and psychological or psychiatric progress before any application, and directed that any application be heard by the same judge if practicable.

The father appealed. He contended that he had not received proper notice, that no restriction should have been made, and that its duration was excessive. Earlier in the appeal process the Court of Appeal had granted permission, holding that binding conditions could not be attached to such an order. The central issues were whether informal notice sufficed, whether the order and its duration were within the judge’s discretion, and what amendments were required.

1. Appeal allowed in part. Wall LJ, with whom Lloyd and Chadwick LJJ agreed, held that the conditions attached to the section 91(14) order were impermissible and had to be deleted. A court may tell a litigant that addressing a particular matter is likely to be relevant to whether leave is granted in future. That is a non-binding indication. It may not impose treatment and production of expert evidence as binding preconditions to a future application.

2. The absence of a formally issued and served application did not invalidate the restriction. The father had informal notice that it would be sought. The judge had a wide procedural discretion and could fairly proceed on the particular facts: the prolonged and numerous proceedings, the father’s withdrawal and non-attendance, the evidence before the court, and the children’s settled position with their mother.

3. The judge was entitled to make the order. The facts fulfilled the criteria identified in Re P: the proceedings’ duration and volume, the withdrawal, and the absence of anything further proceedings could achieve for the children’s interests. The restriction did not deny access to the court. It required the father first to show an arguable case with some prospect of success.

4. The duration until each child reached 16 was also within the judge’s broad discretion. It was open to the judge to conclude that the children’s welfare required protection from further applications during their minorities unless leave were obtained.

5. The direction that a future application be heard by Judge Mitchell was deleted. Any application for contact was to be made to a Family Division Liaison Judge for the South Eastern Circuit and, if necessary, determined by an allocated Family Division High Court judge. It was to be made initially on paper and without service on the mother, subject to the judge’s directions.

• Court of Appeal (Civil Division): allowed the appeal in part and varied the county court order by deleting its binding conditions and the direction that Judge Mitchell hear future applications.

• Court of Appeal (Civil Division): earlier granted permission to appeal in proceedings reported as [2006] EWCA Civ 1190, holding that conditions could not be attached to a section 91(14) order.

• High Court: Black J refused permission to appeal on 19 July 2005.

• Canterbury County Court: on 27 September 2004, Judge Mitchell made the section 91(14) order following the father’s withdrawal of his application for residence and contact.