Many, many years ago I wrote a piece for Family Law Week about s91(14) Children Act. It’s still up on the FLW site here (yes, the picture is me in 2011). I have thought about updating it over the years, but until now I have never been sufficiently bored and it has never been sufficiently urgent. After all, whilst there have been various published judgments over the years since (mainly successful appeals against the making of such orders), they all refer back to and fall in line with Re P (A Child) [1999] EWCA Civ 1323, (which is even older than that amusing picture).
The title of that 2011 article posed the question: ‘A never ending story?’And so it has proven ultimately to be, because last year (on May 19th to be precise) s91(14) was amended by the Domestic Abuse Act 2021. That created new s91A Children Act 1989 which essentially re-crafts when and how the court should consider and exercise its s91(14) jurisdiction. With it came a whole new PD (PD12Q), and a number of other PDs were also amended to cross refer. So, it really is time that I updated my article. And having found myself doing a mini-review of recent authorities for the purposes of a talk I’m doing tomorrow, I realised I had the bare bones of that update laid out in front of me. So I’m seizing the moment.
The first authority that is worth considering is the case of Re A (A Child) (Supervised Contact) (Section 91(14) Children Act 1989 Orders) [2021] EWCA Civ 1749, decided by King LJ, a judgment prepared just before the new s91A was about to come into force, but which dealt with the already changed landscape since Re P had been decided some 22 years prior. That new provisions dovetailed with the modern approach that should in any event be taken to s91(14) orders, giving “statutory effect to Guideline 6 of Re P by permitting a s91(14) order to be made where the making of an application under the Children Act 1989 would put the parent or child at risk of physical or emotional harm”. That judgment has been repeatedly referenced by judges grappling with the new version of s91(14) in their judgments.
In F v M [2023] EWFC 5, Hayden J (building on Re A) opined that
“The filter exists to protect the child and, not infrequently, the parent with whom the child lives. It is not a punitive measure towards a recalcitrant parent. Neither is it a bar on access to justice. Where a Court identifies an issue that requires to be resolved, the case will proceed but where it does not, the child and the primary carer are protected from the stress and uncertainty of a misconceived or vexatious application. Anticipating the introduction of the amended Section 91A reforms, which had received Royal Assent, but not yet come into force at the time of her judgment, King LJ said:
“[41] In my judgment in many cases, but particularly in those cases where the judge forms the view that the type of behaviour indulged in by one of the parents amounts to ‘lawfare’, that is to say the use of the court proceedings as a weapon of conflict, the court may feel significantly less reluctance than has been the case hitherto, before stepping in to provide by the making of an order under s91(14), protection for a parent from what is in effect, a form of coercive control on their former partner’s part.”
This 2023 judgment of Hayden J was the final installment in a long running case in which serious findings of coercive and controlling behaviour had been made against a father (the original judgment can be found at F v M [2021] EWFC 4).
At the final hearing stage of F v M the court raised the issue of a s91(14) order of its own motion (as indicated by the new provisions). This resulted in the parties agreeing that there should be an order prohibiting any application without leave until the youngest child was 18 (2035), an order which Hayden J explicitly confirmed was necessary and proportionate based on the particular facts of the case. As a mark of how unusual the facts were, not only had Hayden J made the extensive and grave findings against he father in his first judgment, here he concluded by making an order providing for no indirect contact (again, without opposition), saying that:
“there are occasions where it is necessary to recognise a disagreeable truth. There is, sometimes, though very rarely, a parent who has nothing to offer a child and whom the child is better off without. This is such a case….The decision not to order any indirect contact has to be seen in [the light of practice in adoption cases], truly to understand how uncommon the order is and why. My comments in respect of this father are not ones that any Judge makes lightly.”
At paragraph 20 of his judgment Hayden J describes the provisions of s91A as:
“transformative. The section provides a powerful tool with which Judges can protect both children and the parent with whom they live, from corrosive, demoralising and controlling applications which have an insidious impact on their general welfare and wellbeing and can cause real emotional harm. This amended provision strikes me as properly recognising the very significant toll protracted litigation can take on children and individuals who may already have become vulnerable, for a variety of reasons. It also dovetails with our enhanced understanding of the nature of controlling and coercive behaviour. When all other avenues are lost, too often the Court process becomes the only weapon available. Lawyers and Judges must be assiduous to identify when this occurs, in order to ensure that the Court is not manipulated into becoming a source of harm but a guarantee of protection.”
In A Local Authority v F [2022] EWFC 127, Knowles J describes the changed litigation landscape and again references Re A:
“In its analysis, the Court of Appeal in Re A noted that the forensic landscape had changed out of all recognition since the Re P guidelines came into being and drew attention to the advent of social media, the smart phone and email coupled with a significant number of unrepresented parents in private law proceedings. Despite the court’s powers of case management, litigants regrettably bombarded the court or the other party with emails, either because of anxiety in some cases, or in others, as part of a campaign of oppressive behaviour by one parent against the other”
Again, this was a case with stark facts – the father had killed the childrens’ mother – and where no party opposed the making of a s91(14) order for the duration of the childrens’ minority. The court said that
“Even if the father were remorseful and anxious to atone for what he has done to his children, I consider that further applications by him would undoubtedly place these children at risk of harm and the impairment of their mental health. However, the father is neither contrite nor remorseful – and maintains the lies he told police at the very outset of the investigation into the mother’s disappearance, namely that she is alive and has run away abroad to live with a boyfriend. Maintaining that fiction in the context of future applications in respect of the children would, in my view, be profoundly destructive of these children’s emotional well-being…
Any application made by the father – unless filtered by an order pursuant to s.91(14) – would likely require the children’s views to be sought. The procedural reality of any application in circumstances such as these would create emotional uncertainty for these children and is likely to impair their mental well-being.”
Taking matters a step further from Re A, Knowles J drew out the following distinction between the old and new regimes. Referring to the wording of s91A her Ladyship said,
“The risk that harm may arise to a child under the age of 18 unless the making of applications is restrained is not qualified by words such as “serious” or “significant” and neither is the degree of harm that a child may experience. I observe that, insofar as the risk that harm may arise to a child is concerned, section 91A(2) sits a little uneasily alongside guideline 7 of the Re P guidelines which states that there must be a “serious risk [my emphasis] that, without the imposition of the restriction, the child or primary carers will be subject to unacceptable strain”. Correctly applied to a child’s circumstances, section 91A(2) gives a court greater latitude to make section 91(14) orders than the Re P guidelines do.“
Re P is not to be entirely abandoned however. Knowles J till took into account Re P guideline 10 i.e. proportionality. She considered that the harm the order was intended to protect the children from would be “grave and profoundly destabilising for each of these children”, not least because any application without leave would necessarily involve the children being spoken to.
More recently again, in TF v DL v E&P [2022] EWFC 139, District Judge Webb dealt with a case involving a father diagnosed with a delusional disorder and a long history of vexatious applications and abusive correspondence against a backdrop of his belief the courts were corrupt. Given that a High Court Judge had made an extended civil restraint order as far back as 2015, and the fact that there was continuing behaviour (the judgment annexes a list of 15 recent applications, and refers to an unpublished schedule of offensive and abusive comments), it is unsurprising that the application was granted on the Guardian’s recommendation for 5 years.
Whilst not a judgment which sets any precedent, it is useful as an illustrative example of the application of the new provisions, and it is the only judgment I’ve seen that explicitly references the Harm Panel report which prompted the changes in the first place.
Some conclusions
The new provisions are still bedding in, but the direction of travel is clear: as explicitly anticipated and identified in PD12Q (and PD12J as amended), the circumstances in which it will now be appropriate to make a s91(14) order are very much expanded. These orders will not be exceptional, nor are repeated unreasonable applications or ‘serious’ harm pre-requisites.
The court is expected to be proactive, and is to undertake a holistic assessment of the potential future impact of future litigation upon the parties and children, particularly in the context of domestically abusive or coercive and controlling behaviour. The court is to guard against becoming a tool of abuse, control or harassment and against allowing ‘lawfare’ to run unconstrained. It remains to be seen how many applications for permission will flow from the increased numbers of s91(14) orders that will inevitably now be made, how those applications will be dealt with by the court, and how effective a protection the new orders will be.
Readers are encouraged to read PD12Q and sections 91 and 91A Children Act 1989 in full.