N (Children)

An order under section 91(14) of the Children Act 1989 significantly interferes with access to justice. Before making one, the court must ensure that affected parties know the order is being considered, understand its effect, know the evidential basis, and have a proper opportunity to make representations. These safeguards apply whether or not a party is represented, and are especially important for litigants in person. Where the issue arises unexpectedly at a directions hearing, the proper course is ordinarily to adjourn for a hearing on notice. A time-limited liberty to apply does not cure the defect. An application to vary an improperly made order must receive proper consideration and should not be summarily dismissed.

The father appealed against orders made by Hayden J in private children proceedings. At a directions hearing on 14 March 2018, held in the father’s absence, the judge made an order under section 91(14) of the Children Act 1989 preventing either parent from making further child arrangements applications without permission. The father was given limited liberty to apply to vary that restriction.

On 3 July 2018, Hayden J treated the father’s application as an application for permission under the restriction and dismissed it summarily after considering limited therapeutic evidence. The mother was not present at that hearing. The central issue before the Court of Appeal was whether the two hearings were procedurally fair and what consequential orders should follow.

Appeals allowed. Baker LJ gave the judgment, with Peter Jackson LJ agreeing. Paragraph 4 of the order of 14 March 2018 and the order of 3 July 2018 were set aside. The matter was remitted for a further hearing before MacDonald J.

1. Orders under section 91(14) of the Children Act 1989 must be made sparingly because they significantly interfere with a party’s ordinary access to justice. The guidance in Re P [1999] EWCA Civ 1323 and Re T (A Child) (Suspension of Contact) [2015] EWCA Civ 719; [2016] 1 FLR 916 required careful procedural compliance.
2. Before making such an order, the court must ensure that affected parties are aware that the application is before the court, understand the order’s meaning and effect, know the evidential basis, and have a proper opportunity to make representations. The requirements apply to represented and unrepresented parties, with particular importance where a party is unrepresented.
3. Those requirements were not met. The possibility of a section 91(14) order was raised only at the end of a hearing listed for directions. The father had no notice that substantive or final orders might be made, was absent, and had no proper opportunity to address the proposed restriction. The appropriate course was to adjourn for a further hearing with suitable case-management directions. Giving him time-limited liberty to apply did not cure the procedural defect.
4. Because the March restriction had been irregularly made, the July application should not have been treated as a summary permission application. It merited substantial consideration, and its summary dismissal was plainly wrong. The Court of Appeal declined to impose a fresh restriction itself. Any such application had to be made at a future hearing in compliance with the procedural requirements, leaving the eventual outcome open.

1. Court of Appeal (Civil Division): granted permission to appeal against the 14 March 2018 order, allowed both appeals, set aside paragraph 4 of that order and the order of 3 July 2018, and remitted the matter for a further hearing before MacDonald J: [2019] EWCA Civ 903.
2. High Court Family Division: Hayden J made the section 91(14) restriction on 14 March 2018 and, on 3 July 2018, refused the father’s application to vary it.