M (A Child), Re

Section 91(14) of the Children Act 1989 permits the family court to restrict specified applications for orders under the Act. It does not authorise an order preventing or controlling an assessment itself. The power should not be used as a belt-and-braces measure where no relevant application has been made and no such order is legally available. For a child in local-authority care, section 9(1) precludes a section 8 order, other than a residence order. A section 91(14) restriction framed in those circumstances is beyond the court’s proper power.

The mother’s children were subject to care orders and lived with foster parents. She appealed to SENDIST against parts of her younger child’s statement of special educational needs and sought independent educational psychology and speech and language assessments. During proceedings in which she sought discharge of the care orders and contact, the local authority sought a restriction under section 91(14) of the Children Act 1989. The recorder refused discharge and contact applications and ordered that applications for permission for further assessments could not be made without leave for two and five years respectively. The mother appealed against that restriction. The central issue was whether section 91(14) permitted such an order where no relevant Children Act application had been made and the proposed order was unavailable for a child in care.

Appeal allowed. Holman J gave the judgment, with Wall LJ agreeing. Permission to appeal was granted and paragraph 6 of the recorder’s order was deleted.

1. Section 91(14) of the Children Act 1989 is directed solely to restricting the making of applications for specified orders under that Act. It confers no power to prohibit or control an assessment itself. The transcript of the recorder’s judgment therefore required correction: the word “or” should read “for” in the reference to preventing an application for assessment.
2. The mother had made no application to the family court for an assessment. Her solicitors had only asked the local authority to make the child available for assessments for the SENDIST appeal. More fundamentally, no application could properly be made for a Children Act order relating to those assessments. The only theoretically relevant order was a specific issue order under section 8, but section 9(1) precluded the making of such an order, other than a residence order, in respect of a child in local-authority care.
3. The local authority’s suggested belt-and-braces justification was rejected. Although section 9(1) did not expressly prevent an application being issued, there was no history of the mother making applications unavailable within the statutory scheme. In those circumstances the section 91(14) direction was not properly open to the recorder and risked suggesting that the family court possessed a power to restrict assessments which it did not have.
4. The court confined its decision to the validity of the section 91(14) restriction. It declined to determine wider questions concerning SENDIST’s jurisdiction or possible judicial review proceedings.

• Court of Appeal (Civil Division): appeal allowed; permission to appeal granted; paragraph 6 of the order deleted.
• Principal Registry of the Family Division: Mr Recorder McCarthy QC refused the applications to discharge the care orders and for contact, and imposed section 91(14) restrictions on applications for further expert assessments.