Re S (CA 1989, s 91(14))

Applications for leave to issue proceedings while subject to a Children Act 1989 section 91(14) order require a relatively low threshold. The applicant must show a need for renewed judicial investigation and an arguable case with some chance of success. Where the original order followed particular conduct, the applicant must address that conduct. The court must also consider any material change of circumstances since the order was made under section 91A(4). The section 91(14) filter is not intended to operate as an absolute barrier. The application should normally proceed through an initial without-notice review, followed, if the threshold is passed, by an on-notice inter partes hearing. The hearing must be fair and sufficiently informed by the judgments and evidence that led to the original restriction.

The father appealed against an order of HHJ Patel, made on 27 September 2022 in the Family Court at Leicester, refusing him permission to pursue an application for contact with his children while subject to an extended section 91(14) order. The restriction had followed findings of domestic abuse and had been extended until the youngest child reached sixteen.

The father relied on a psychological report, courses undertaken in prison, changed personal circumstances and stable employment. He argued that the hearing had been procedurally unfair and that the judge had applied the wrong legal test. The central issues were whether the hearing was fair and what test governed an application for leave under section 91(14).

1. Appeal allowed. The hearing below had not been fair. Technical problems during a telephone hearing prevented the father, a litigant in person, from presenting his case coherently. The decision was important because it concerned either continuation of an extensive restriction for several years or permission to restart contact proceedings. The matter therefore had to be reconsidered.
2. The judge below had also adopted the wrong test by applying the ordinary test under section 10(9) of the Children Act 1989 applicable to a person unconnected with the child. The settled test for release from a section 91(14) restriction was stated in Re S as requiring a need for renewed judicial investigation based on an arguable case with some chance of success. An applicant subject to an order made because of particular conduct must address that conduct.
3. The statutory position had since been supplemented by section 91A(4), which requires the court to consider whether there has been a material change of circumstances since the section 91(14) order was made. The section 91(14) procedure is a filter, not a barrier, and the threshold is not formidable. The court must consider the full range of relevant circumstances rather than treating completion of one recommended step as a decisive or automatic route to contact.
4. An application for leave should normally be heard on notice to the other party. A judge may first conduct a without-notice review. If the application passes that initial stage, notice should be given and an inter partes hearing held. The judge determining the renewed application should have the judgments explaining the original findings and restriction, including the fact-finding judgment and the later judgment extending the order.
5. The father was permitted to file a fresh statement. The matter was to remain in the High Court and be listed before Lieven J, who would determine the future allocation and whether representatives involved for the children should be served.

• High Court (Family Division): Appeal from the order of HHJ Patel, Family Court at Leicester, made on 27 September 2022. The appeal was allowed and the application for leave was directed to be reheard.