F (A Child)

An order restricting further applications under section 91(14) of the Children Act 1989 is exceptional and the child’s welfare remains paramount. It may be justified not only by unreasonable or vexatious applications, but also where a pause in parental conflict is needed to protect children from its harmful effects.

An appellate court will not interfere with a properly conducted welfare decision that falls within the trial judge’s proper discretion. A restriction on applications to vary residence does not prevent an application for joint residence where it does not seek to alter the children’s practical living arrangements.

The father sought a residence order for the younger of two children, who lived with the mother but had substantial contact with the father. Following the child’s refusal to return to the mother after contact and allegations about her care, the Southend County Court dismissed the father’s application. It also made a three-year restriction under section 91(14) of the Children Act 1989 on either parent applying to vary residence.

The father sought permission to appeal. The principal issues were whether the judge had acted unfairly by refusing an adjournment after a late expert report, whether the welfare decision and restriction order were within discretion, and whether the restriction barred a future joint-residence application.

1. Permission to appeal was granted, but the appeal was dismissed. The County Court had been entitled to refuse an adjournment despite the late delivery of Professor Zeitlin’s report. The relevant opinions on which the judge relied were uncontroversial and the judge could properly seek to resolve damaging parental conflict without further delay.

2. The refusal to transfer residence was a proper welfare decision. The judge had found no concern in the mother’s care, considered that separation from the child’s brother would be wrong, and was entitled to regard a transfer as enabling the child to exploit the parental dispute. The appellate court could not interfere with that discretionary conclusion.

3. The court applied Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573. An order under section 91(14) of the Children Act 1989 is exceptional and welfare remains paramount. The jurisdiction extends beyond controlling unreasonable or vexatious applications. It may protect children who need relief from continuing litigation and parental animosity. Those conditions were present, and the restriction was confined to applications to vary residence.

4. The restriction did not bar an application for joint residence which did not disturb the existing practical arrangements. Hedley J stated, and Thorpe LJ agreed, that such an application could be made and should be considered on its merits by the County Court. No variation of the restriction order was required.

• Court of Appeal (Civil Division): Permission to appeal granted; appeal dismissed: [2006] EWCA Civ 752.
• Southend County Court: On 5 July 2005, HHJ Yelton dismissed the father’s application for a residence order and made a three-year order under section 91(14) of the Children Act 1989 restricting applications to vary residence.