J (A Child)

Orders under section 91(14) of the Children Act 1989 are exceptional, but may be made without a fixed end date and may last until the child reaches 18. Orders of that duration should be reserved for the most egregious cases and supported by cogent reasons. The court must identify the mischief to be prevented, consider whether a defined period could permit renewed assessment or restoration, and explain what must change before permission is likely. Such an order does not permanently close the court’s door: a meritorious application remains possible. Where repeated litigation threatens a child’s welfare, the restriction may properly cover both discharge of a care order and further contact applications.

The mother appealed against an order made by Munby J on 24 June 2005 under section 91(14) of the Children Act 1989. The order required her to obtain permission before making further applications concerning her autistic child and was expressed to expire on his 18th birthday. The High Court had also refused permission to appeal out of time against the care order and dismissed applications concerning discharge and contact, but permission to appeal to this court was granted only on the duration of the section 91(14) restriction. The central issue was whether such an unusually lengthy prohibition was a proper exercise of discretion.

1. Disposition. Lord Justice Wilson gave the judgment and Lord Justice Dyson agreed. The appeal was dismissed.
2. Section 91(14) of the Children Act 1989 permits, in exceptional circumstances, an order requiring permission before further applications. Consistently with Re S (Permission to Seek Relief) [2007] 1 FLR 482, such an order may be made without limit of time. Under section 93(13), it ceases to operate when the child reaches 18, so an order expressed to expire on that birthday has the same effect. Re P (A Minor) (Residence Order: Child’s Welfare) [2000] Fam 15 provided a further example of such an order being upheld.
3. The observation in Re S that orders without a time limit, or lasting until 16, should be exceptional rather than usual was explained as placing them at the egregious end of the exceptional cases justifying section 91(14) protection. The court must consider the mischief addressed, whether the matter can be revisited after a defined period, and whether a relationship might be restored. The reasons must be clear enough to identify the matters requiring attention before permission is likely.
4. A section 91(14) order does not permanently shut the court’s door. The court remains able, and where appropriate obliged, to entertain an application with prima facie merit. The restriction may nevertheless cover both an application to discharge a care order under section 39 and a further contact application under section 34(3), where allowing either route would undermine the protective purpose of the order.
5. Here, the prolonged history of litigation, the mother’s repeated statements that she would continue challenging the care arrangements, J’s severe disability, and the absence of any predictable timetable for change provided cogent justification for a moratorium until his 18th birthday. The order did not fetter future discretion because permission could be sought by reference to the identified matters, including therapy, a better relationship with the local authority, and greater household stability.

• Court of Appeal (Civil Division). Permission to appeal was granted on the duration of the section 91(14) order alone. On 17 July 2007 the court dismissed the appeal.
• High Court, Family Division. Munby J made the section 91(14) order on 24 June 2005, requiring permission for further applications concerning J until his 18th birthday.