El v Royal Borough of Kensington and Chelsea

A section 91(14) order under the Children Act 1989 is a discretionary safeguard, not an absolute bar on future applications. It may be appropriate where there is extensive and unproductive litigation. The court must nevertheless consider carefully the duration and conditions of the order, particularly where it would operate throughout a child’s minority and the parent retains parental responsibility. A reviewing appellate court may intervene only where the decision was unavailable on the evidence, the hearing was unfair, or there was an error of law.

EL, the mother of J, sought permission to appeal against orders made by Munby J on 24 June 2005. The orders refused permission to appeal out of time against a 2002 care order, refused residence and contact orders, left contact to the local authority’s discretion, and imposed a Children Act 1989, section 91(14) restriction until J’s eighteenth birthday.

Before the Court of Appeal, EL relied on alleged breaches of ECHR Articles 3, 6, 8, 10 and 14, and challenged the duration of the section 91(14) order. The central issue was whether any arguable ground justified permission to appeal and whether the time limit imposed under section 91(14) required further consideration.

1. Disposition. The application for permission to appeal was dismissed, except for the challenge to the time limit attached to the section 91(14) order, which was adjourned for further argument before a two-judge court. CAFCASS Legal was invited to appoint an advocate to advise on the jurisdiction to impose such conditions and to make an order lasting throughout a child’s minority.
2. Appellate review. The Court of Appeal is a reviewing court. It asks whether the decision was open to the judge, whether the hearing was fair, whether the findings were properly available on the evidence, and whether there was an error of law. A different view of the facts or mere disagreement with the result is insufficient.
3. ECHR claims. Article 3 was not engaged. Article 6 was engaged but was not infringed: EL had a sufficient opportunity to participate, including by telephone. Article 8 was engaged by the care proceedings, but the interference was in accordance with law and necessary for the protection of J’s health and the rights of J and his father. Article 8 required the competing family rights to be balanced against the child’s best interests. Articles 10 and 14 were not engaged.
4. Section 91(14). The provision confers a discretion. In this unusual case, the restriction was within the judge’s discretion because of the long history of litigation, the need for a break, the existing arrangements for contact, and the absence of a realistic prospect that further applications would assist. The duration caused concern because it effectively required permission for any application throughout J’s minority, while EL retained parental responsibility and future changes in J’s placement were possible. That issue required further argument.
5. Langley. Langley v Liverpool City Council was distinguished and did not assist EL. On the evidence, the police were entitled to act under section 46, and J’s removal was lawful and justified under Article 8(2).
6. Access to Justice Act 1999. The statutory gateway for a further appeal was not satisfied because the case raised neither an important point of principle or practice nor another compelling reason.

• Court of Appeal (Civil Division) — [2006] EWCA Civ 163: EL’s application for permission to appeal against Munby J’s order was dismissed, save that the challenge to the duration of the section 91(14) restriction was adjourned for further argument before a two-judge court.
• Family Division of the High Court — Munby J’s order dated 24 June 2005: permission to appeal against the 2002 care order was refused; residence and contact applications were dismissed; and a section 91(14) order was imposed until J’s eighteenth birthday.
• District Judge Moorhouse — care order dated 26 February 2002.