H (A Child)

A restriction under section 91(14) of the Children Act 1989 is a drastic remedy. Repeated meritless applications are a usual reason for making such an order, but they are not the only possible justification. Protecting a child’s security and peace of mind may justify the restriction in an appropriate case. An order made without a time limit, or lasting until the child reaches 16, should be exceptional and supported by fully and carefully stated reasons. The order must also identify the nature of the applications which cannot be made without permission, such as applications under section 8.

The mother sought permission to appeal against an order made by His Honour Judge Hugh Jones at Pontypridd County Court on 11 February 2010. The order, made on the child’s guardian’s application, prohibited the mother from making any further application concerning the child without the court’s permission under section 91(14) of the Children Act 1989.

The mother did not pursue appeals against orders that the child live with her father and stepmother and that her application for contact be dismissed. The proposed appeal challenged both the guardian’s ability to seek the restriction and the judge’s approach to making it. The central issues were whether the restriction itself was justified and whether its duration and scope had been properly specified.

1. Permission and scope. The application for permission to appeal was granted in part. Permission was limited to the judge’s failure to specify the applications covered by the restriction and to impose a time limit, or explain why no time limit was imposed. Permission was refused to challenge the making of the section 91(14) restriction itself.
2. A child is a party and the guardian, acting in that capacity, could apply for a section 91(14) order. That position would differ if the person were acting only as a Cafcass officer reporting to the court.
3. The restriction was justified on the facts. Although repeated meritless applications are the usual basis for such an order, they are not the only basis. The judge was entitled to rely on the guardian’s and social worker’s evidence that the child’s improved security, peace of mind and sense of belonging should not be unnecessarily disturbed.
4. The judge arguably erred in failing to follow the guidance in Re S (Permission to Seek Relief) [2007] 1 FLR 482. Orders without a time limit, or expressed to last until a child is 16, should be exceptional, and the reasons for making them should be fully and carefully stated. The order also needed to identify the nature of the applications barred without permission. The court gave section 8 applications as the example.
5. The appeal was directed not to be listed until the parties had engaged in mediation, or until the court was informed that a party was unwilling to participate. The court considered that the appeal might be compromised and encouraged the parties to address the child’s wider interests.

• Court of Appeal (Civil Division): On an application for permission to appeal from an order made at Pontypridd County Court on 11 February 2010, limited permission was granted. The proposed appeal was confined to the order’s scope and duration; the challenge to the making of the restriction itself was excluded.