It is a basic principle of UK law and a fundamental freedom that everybody should have the right of unrestricted access to the courts and the law. A further right under the European Convention is the entitlement to a family life. These rights do not lie easily with Section 91 (4) of the Children Act 1989.
Section 91 (4) gives a court the power to restrict a person (usually a parent) from making any further applications concerning a child. Although rarely used it is a draconian order which is undoubtedly a substantial interference with a person’s basic rights. It provides that:
“On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specific kind may be made with respect to the child concerned by any person named in the order without leave of the court.”
Happily however it is only in exceptional circumstances that a court will make a s 91(14) order. In the leading case of Re P Lady Justice Butler-Sloss (as she then was) warned that this discretionary power is to be used “with great care and sparingly”, and as the “exception and not the rule”. Her ladyship went on to give guidance on when an order might be made.
Before making a s 91(14) order the court must be satisfied that:
(i) The facts of the case went beyond any commonly encountered need for a time to settle to a regime ordered by the court and the common situation where there was animosity between the adults in dispute; and
(ii) there was a serious risk of subjecting the child or the primary carers to “unacceptable strain”, if the restriction was not imposed.
She also held that such a restriction should only be imposed by a court subject to the rules of natural justice, and that the court should “carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained and the duration of the order”.
In a later case, that of Re C-J the Court of Appeal confirmed that any prohibition imposed under this section “must be compatible with the primary drive and objective of the court to restore the relationship between a parent and child”.
Also in Re S the Court of Appeal held that whilst it is not possible to attach a condition to a s 91(14) order, the court is entitled to direct that unless a particular issue is addressed by the party upon whom the restriction is imposed, any application for leave to make a further application is unlikely to succeed.
As with any other order under Children Act, in considering whether to make an order under s 91(14), the court must have the welfare of the child as the paramount consideration.
In the more recent case of Re C (Children) a judge refused a father’s application for a residence order and went on to make a s 91(14) order. This was held to be entirely wrong by the Court of Appeal. The father had done nothing wrong in the litigation and the judge had in effect barred the court from carrying out its continuing responsibility to the child and to make contact work.
Although these orders will only be made in exceptional circumstances and should only be made against vexatious litigants, in the writer’s view they have a fundamental flaw. What is in a child’s best interests is dependent on the circumstances existing at that time. These circumstances will change. With this change will arise arguments and very possibly the need for arrangements to be varied. There can be few circumstances when a parent should be denied his right to refer the need for change in arrangements for his child to the court.