A (A Child), Re

An order under s.91(14) of the Children Act 1989, restricting further applications concerning a child without leave, is exceptional. It must be made with great care and sparingly, ordinarily as a last resort following repeated and unreasonable applications.

The court must have a proper evidential and procedural basis for the restriction. It should hear submissions on its propriety, and the order must identify both the person subject to it and the specified kinds of application requiring leave. A judge’s understandable wish to prevent further litigation cannot justify a summary and unspecified restriction.

The father sought permission to appeal three parts of an order made by HHJ Butler QC in the Nottingham County Court on 28 September 2009 under the Children Act 1989. The order gave the mother a residence order, set detailed contact arrangements for their son, and purported to bar further applications for 18 months under s.91(14).

The parties had previously obtained a detailed contact order in the family proceedings court. Their later cross-applications concerning residence, together with further contact issues, were transferred to the county court. The father challenged the residence order, aspects of contact and the s.91(14) restriction. The central issue was whether the restriction had been lawfully and properly imposed at a short hearing.

1. Permission to appeal was refused in respect of residence and contact. The judge was entitled, and was correct, to make a residence order in favour of the mother. The father’s late reliance on the no-order principle in s.1(5) of the Children Act 1989 lacked force in circumstances where the parents had not been cooperating well and the court needed to register that the child’s home was with the mother for the foreseeable future.

2. The complaints about the Christmas contact arrangements and the omission of the earlier provision for special family events did not justify appellate intervention. The father had an adequate opportunity to raise those matters below. The mother nevertheless agreed that, from 1 January 2010, there would be two additional annual occasions of contact for special events, subject to notice and a good-reason qualification.

3. Permission to appeal was granted and the appeal allowed against the s.91(14) order. The jurisdiction is exceptional. Applying the guidelines in Re P (s.91(14)) (Residence and Religious Heritage) [1999] 2 FLR 573, it must be exercised with great care and sparingly, generally as a weapon of last resort where there have been repeated and unreasonable applications.

4. The judge imposed the restriction at the outset of a short hearing, although neither party had sought it and it had not been foreshadowed in the mother’s case summary. There was no adequate evidence that the father’s two applications had been unreasonable, apart from his unsuccessful residence application. At the least, the judge should have invited submissions about the order’s propriety, as required by Re C (Litigant in Person: Section 91(14) Order) [2009] EWCA Civ 674.

5. The order was also defective on its face. It neither specified the kinds of applications requiring leave nor named the person subject to the restriction, as s.91(14) requires. The judge’s desire to control future litigation was therefore an illegitimate foundation for the order, which was set aside.

• Court of Appeal (Civil Division): Permission to appeal was refused in respect of residence and contact. Permission was granted in respect of the s.91(14) restriction; the appeal was allowed and that order was set aside.

• Nottingham County Court: On 28 September 2009, HHJ Butler QC made a residence order in favour of the mother, a detailed contact order, and an 18-month order under s.91(14) of the Children Act 1989.

• Family proceedings court: Made a detailed contact order on 13 August 2008. In June 2009 it transferred the parties’ later residence and contact applications to the county court.