DJ v MS

A restriction under section 91(14) of the Children Act 1989 is a discretionary and exceptional intrusion on a parent’s ability to bring proceedings concerning a child. It should be used sparingly, generally as a last resort in cases involving repeated and unreasonable applications. The application should ordinarily be issued on notice and supported by evidence. The court should not impose the restriction without notice unless the circumstances are genuinely exceptional or urgent. The power is generally inappropriate where contact proceedings remain ongoing and the applicant has not demonstrated abusive or unreasonable litigation conduct.

The father appealed against a district judge’s order made during ongoing contact proceedings. The district judge had, on his own motion, restricted the father from making further applications concerning his daughter for twelve months without leave, while permitting indirect contact to continue.

The father argued that the order had been made without notice and without an opportunity to address relevant expert material. He also contended that the evidence did not show repeated unreasonable applications or justify the use of section 91(14). The central issues were whether the procedure was fair and whether the discretion had been properly exercised.

1. Appeal allowed in part. The appellate court’s function was to review the district judge’s decision, not to rehear the evidence. Intervention was justified for procedural irregularity, failure to take account of a relevant matter, consideration of an irrelevant matter, or a decision that was plainly wrong. The approach in Cordle was applied.
2. The section 91(14) restriction should not have been imposed on the court’s own initiative without advance notice and supporting evidence. Applications of this kind should ordinarily be properly issued and served. The court had been referred to Re F, which supported that procedural approach. This case was not shown to involve the exceptional urgency required to dispense with it.
3. The district judge’s discretion was also flawed on the merits. The father had not made repeated unreasonable applications, had not deliberately flouted contact orders, and appeared genuine in seeking contact. The case involved serious and intractable difficulties, but those circumstances did not establish abusive litigation conduct.
4. The guidance in Re P was applied. The power is discretionary and requires consideration of all relevant circumstances. It is a statutory intrusion upon the right to bring proceedings concerning a child and must be used carefully and sparingly, as an exception rather than the rule and generally as a weapon of last resort.
5. Section 91(14) was particularly inappropriate while the contact application remained ongoing. The restriction was set aside and replaced by an adjournment until the first open date after 1 September 2006, with the matter to be refixed by the father’s application.

• High Court (Family Division): The appeal from the district judge’s order was allowed to the limited extent that the section 91(14) restriction was set aside and the contact application was adjourned.
• Inner London Family Proceedings Court: On 22 December 2005, the district judge imposed a twelve-month restriction under section 91(14) without leave of the court.