G (A Child), Re

A restriction on applications under section 91(14) of the Children Act 1989 is an exceptional safeguard. It must be used sparingly and ordinarily as a last resort against repeated and unreasonable proceedings. Where there is no such history, clear evidence must show circumstances beyond the ordinary need to settle into a contact regime or adult animosity, and a serious risk of unacceptable strain without a restriction.

A court must also afford procedural fairness before making a contested residence order. A residence order settles living arrangements; it does not confer additional parental authority where both parents have parental responsibility.

The father appealed orders made by HHJ Shawcross after proceedings concerning contact with the parties’ young child. The judge made a detailed contact order, imposed a two-year restriction on further section 8 applications under section 91(14) of the Children Act 1989, and then made a residence order in the mother’s favour.

The mother sought the residence order only after the judge had delivered judgment. The father, acting in person, objected and asked for time to consider its legal effect. The appeal concerned whether the section 91(14) restraint was justified and whether it was fair to determine the residence issue without an adjournment.

Decision

1. Ward LJ, with whom Rimer LJ agreed, allowed the appeal. The section 91(14) restraint and the residence order were set aside.

2. The applicable guidance was that in Re P (Section 91(14) (Guidelines) (Residence and Religious Heritage)) [1999] 2 FLR 573. A restriction is a serious intrusion on access to the court. It is to be used with great care, sparingly, and normally as a last resort in cases of repeated and unreasonable applications.

3. The case did not meet the stricter requirements for imposing a restriction where there was no history of unreasonable applications. The father’s applications had been well founded and neither excessive in number nor unreasonable. The evidence did not show circumstances beyond the ordinary need for parties to settle into a contact regime, nor a serious risk of unacceptable strain to the child or mother. The judge’s concern about the father’s attitude and a wish to provide breathing space did not justify the order. His discretionary decision was therefore flawed.

4. The residence order was procedurally irregular. It had been sought without a prior application after the substantive judgment, and the father had requested an adjournment to understand and address it. Although the order reflected the child’s present living arrangements, the father was entitled to a fair opportunity to deal with an issue important to him. The proper course was to adjourn it.

5. Ward LJ also explained that a residence order under the Children Act 1989 merely settles the arrangements for the child’s living arrangements. It does not give one parent greater ordinary authority over the child where both have parental responsibility; each may exercise that responsibility while the child is in his or her care.

• Court of Appeal (Civil Division) — allowed the father’s appeal and set aside the section 91(14) restraint and the residence order.

• Family Division, Principal Registry — HHJ Shawcross, sitting as a High Court judge, made detailed contact arrangements, imposed the restriction under the Children Act 1989, and made a residence order for the mother.

• Magistrates’ court — on 31 January 2007, dismissed the father’s application for shared residence and made contact orders. His appeal reached HHJ Shawcross, although he abandoned the shared-residence aspect.