Barnsley Metropolitan Borough Council v EM & Ors

The court may make a Children Act 1989 section 91(14) order where further applications would risk harm to a child or another individual, or where repeated and unreasonable litigation would damage the child’s welfare. The order must identify the applications covered and last no longer than proportionate to the harm avoided.

An extended civil restraint order is appropriate where a litigant persistently issues claims or applications that are totally without merit. The court may also use its inherent jurisdiction to restrain abusive and voluminous communications that threaten the orderly administration of justice, provided a proportionate means of communication remains available.

Care proceedings concerning T, aged 12, concluded in December 2023 with a care order in favour of Barnsley Metropolitan Borough Council. T’s father subsequently issued numerous applications and sent hundreds of abusive or threatening communications to the family court, seeking to challenge the care order and obtain T’s return.

The Council applied for a Children Act 1989 section 91(14) order and an extended civil restraint order. The court also considered, following a case management direction, whether to prohibit the father from contacting court offices by telephone or e-mail and whether to continue an interim communications order.

1. Disposition. The applications were granted. The court made a section 91(14) order until T attained 16, an extended civil restraint order for two years, and an injunction under the inherent jurisdiction restricting the father’s communications with the High Court, Family Court and County Court. The interim order of Poole J was discharged.
2. Section 91(14). The court proceeded in the father’s absence because he had proper notice and the circumstances justified doing so under rules 27(2) and 27(3) of the Family Procedure Rules 2010. Although no substantive application remained live for disposal, section 91A(5)(b) permitted the court to make a section 91(14) order of its own motion.
3. The welfare of the child remained paramount. Section 91A provided a lower statutory threshold than the earlier guidance, including where an application would place the child or another individual at risk of harm. Practice Direction 12Q also identified repeated and unreasonable applications, harassment and oppressive or distressing conduct as relevant circumstances. The father’s persistent applications and communications risked materially destabilising T, so the prohibition was justified and proportionate.
4. Extended civil restraint order. The father had persistently made applications that were totally without merit. The guidance that three unmeritorious claims or applications may constitute the bare minimum for persistence was satisfied many times over. The order properly required permission before applications concerning or connected with the care proceedings could be made in the specified courts.
5. Communications injunction. The court’s inherent jurisdiction extended to protecting court staff and the administration of justice from obsessive, abusive and disruptive communications. A prohibition on telephone and e-mail contact was exceptional but necessary. It remained proportionate because the father could communicate by stamped letter sent through Royal Mail, although abusive correspondence need not receive a response.
6. The court further stated that a person subject to a civil restraint order could not use the Help with Fees scheme to make an application without permission, but could seek a refund using form EX160 if permission was granted and the fee was paid.

First-instance applications in the High Court (Family Division). Earlier care proceedings concluded with a care order in December 2023. Permission to appeal that order was refused by the Court of Appeal as totally without merit. The present applications were granted.