At the end of last year, the Court of Appeal revisited the guidance for the making of orders under s91(14) Children Act 1989.
The proceedings concerned an appeal by a mother in relation to a 7-year-old girl. These were described as “what was to prove to be long running and destructive private law, child arrangements proceedings” (para 9).
At a fact find hearing in October 2019, the court found that the mother “had deliberately placed barriers in the way of the father having a natural relationship with A by taking planned and covert steps to relocate some distance from the father” (para 10). As a result, residence of the child had been transferred to father at an interim stage. A psychological assessment was ordered of the mother. During the interim period, telephone contact between the mother and child was suspended when the mother made “wholly unfounded” allegations of sexual abuse of the child by the father.
Following a final hearing (in which the expert psychologist concluded the mother required DBT) the court made an order that the child live with her father and have professionally supervised contact with the mother. In addition, a s91(14) order was made for a two-year period. The Judge “summarised the endless applications and the deluge of email correspondence, which had been forthcoming largely from the mother, during the course of the proceedings” (para 13).
The court considered the Re P guidelines as set out by Butler-Sloss LJ and noted that “although the guidelines have substantially withstood the test of time and have received the endorsement of this court on a number of occasions in the intervening period, the fact remains that they were set out in April 1999, some 22 years ago. In the intervening period the forensic landscape has changed out of all recognition. Amongst the many advances is the advent of the smart phone and of social media in all its forms. Of particular relevance in this context is the almost universal use of email as a means of instant communication. Another development of relevance is that as a result of the withdrawal of legal aid in the majority of private law cases, a large proportion of parents are unrepresented and therefore do not have, as the judge described it in the present case, the ‘steadying influence’ of legal advisors” (para 34).
Lady Justice King stated that the “easy accessibility to the court and the other parties as a result of emails means that Guideline 5 in Re P which says that s91(14) orders are: ‘generally to be seen as a useful weapon of last resort in cases of repeated and unreasonable applications’, has even more resonance now than it did in 1999. It seems, however, that the phrase ‘weapon of last resort’, when put together with Guideline (4) which says that: ‘The power is therefore to be used with great care and sparingly, the exception and not the rule’, has led to an understandable, but perhaps misplaced, reluctance for judges to make orders under s91(14), save for the most egregious cases of which, on the facts as found by the judge, this is one” (para 38).
“Although an order made under s91(14) limits a party’s ability to make an application to the court, the court’s jurisdiction to make such an order is not limited to those cases where a party has made excessive applications, although that will frequently be the case. It may be that there is one substantive live application but that a person’s conduct overall is such that an order made under s91(14) is merited” (para 39).
“Further, the guidelines do not say that a s91(14) order should only be made in exceptional circumstances, rather Guideline 4 says such an order should be the ‘exception and not the rule’. That is of course right, there is no place in our child focused family justice system for any sort of ‘two strikes and you are out’ approach, but it seems to me that in the changed landscape described in paragraph 30 above there is considerable scope for the greater use of this protective filter in the interests of children” (para 40).
In dismissing the appeal, Lady Justice King stated “there was no error of law or principle on the part of the judge. Of importance when considering the effect of an order under s91(14) is the need to have in mind that it is only a filter. If a time comes within the next two years that credible evidence becomes available to support an application by either the father or the mother which would have the potential substantially to change the extent or form of contact, then permission to make the application will be given” (para 50).
