S-B (Children), Re

An order under section 91(14) of the Children Act 1989 may be made where the child’s welfare requires protection from continuing litigation, even without a history of unreasonable applications. The order is exceptional and should be made with considerable circumspection where litigation creates a serious risk of unacceptable strain for the child or primary carer. Precision about the applications covered is good practice, but an order may extend to applications under any provision of the Act where renewed proceedings would harm the children. The restriction must preserve the ability to seek permission at any time. An appellate court should respect the first-instance judge’s evaluation of contact and duration unless error is demonstrated.

This was the mother’s appeal against a child arrangements order made by His Honour Judge Lancaster at the Family Court sitting at Preston on 17 October 2014. The children had lived with their father since 2012 and had refused direct contact with their mother. The judge ordered fortnightly indirect contact through their school and made a four-year restriction under section 91(14) of the Children Act 1989. The mother did not challenge the dismissal of her applications concerning passports and removal from the jurisdiction.

The appeal concerned whether indirect contact was appropriate, whether the duration of the restriction was excessive, and whether its broad wording was permissible.

Lady Justice King gave the leading judgment, with Lady Justice Macur and Lord Justice Etherton agreeing. The appeal was dismissed.

1. Indirect contact. The first-instance judge had considered the possible reasons for the children’s refusal of direct contact, assessed their expressed wishes in light of their ages, and concluded that indirect contact was in their best interests. The evidence did not demonstrate error in that assessment, so the appellate court dismissed the challenge to the contact order.
2. Welfare and strain. Under section 91(14) of the Children Act 1989, a permission restriction may be imposed where the child’s welfare requires it, even without a past history of unreasonable applications. The guidance in Re P (section 91(14) – guidelines)(residence and religious heritage) [1999] 2 FLR 573 was applied. Such an order is exceptional and draconian. It requires considerable circumspection and, in an appropriate case, protection against a serious risk of unacceptable strain caused by continuing litigation.
3. The evidence of unremitting litigation, professional scrutiny, and the children’s anger and frustration established that their welfare required the restriction. The judge was entitled to conclude that the children needed reassurance that proceedings could not be reactivated without permission.
4. Duration. The four-year period was an evaluative determination for the judge who had heard and seen the parties. The error concerning the younger child’s age did not establish that the duration chosen was wrong.
5. Scope and wording. The reference in section 91(14) to an application of a specified kind does not prevent a restriction covering applications under any provision of the Act where the circumstances justify that protection. The discussion in Re P at page 593f and Re R (residence: contact: restricting applications) [1998] 1 FLR 749 at page 760 was explained as distinguishing a broad restriction from an absolute prohibition. An absolute prohibition is one that gives no opportunity to seek permission during the term. The order here preserved that opportunity. Although precision is good practice, the wording preventing any further applications was upheld on the facts.

• Court of Appeal (Civil Division): On 9 July 2015, dismissed the mother’s appeal against the indirect contact order and the section 91(14) restriction.
• Family Court, Preston: On 17 October 2014, His Honour Judge Lancaster ordered fortnightly indirect contact facilitated by the children’s school and prohibited further applications by the mother without permission until 3 August 2018. Permission to appeal was later granted by Pitchford LJ.