Section 91(14) of the Children Act 1989 allows the family court to make an order barring individuals from making further specified applications under the Children Act 1989 without permission of the court.
What does this mean?
In normal circumstances, certain classes of people can automatically apply to the court for orders under s8 Children Act 1989 - child arrangement orders, prohibited steps orders and specific issue orders. These people are:
- A parent.
- A guardian or special guardian.
- Any person who has parental responsibility.
- Any person named in a child arrangements order with whom the child is to live.
Others can automatically apply for a child arrangements order, but not other s8 orders:
- A party to a marriage/civil partnership where the child is a child of the family.
- A relative or foster carer with whom the child has lived with for at least a year.
- A person who has the consent of everyone who holds parental responsibility, or where an order is in place for a child to live with a person(s), the consent of everyone named in the order with whom the child is to live.
- Where the child is in care, anyone who has the consent of the local authority.
A s91(14) order is a protective filter, meaning that if made against a person that person will no longer be able to automatically apply to the court, they will first need to obtain the permission of the court to make their application.
How does the court decide whether to make a s91(14) order?
The court has a wide discretion to make an order. The guidelines the court should consider (as set out in Re P (A Minor) (Residence Order: Child’s Welfare) [2000] Fam 15; [1999] 2 FLR 573) are:
- The welfare of the child is paramount.
- The court must weigh all relevant circumstances in the balance.
- The making of an order is a statutory intrusion on a person’s right to bring a case.
- The making of orders should be the exception not the rule. It should generally be seen as a useful weapon of last resort where there have been repeated and unreasonable applications.
- The court may impose an order in other circumstances if the welfare of the child requires it, and there is clear evidence that the facts go beyond the normal need for a case to be settled.
- The court can make an order even if not requested by one of the parties.
- An order can be time limited.
- The order must be proportionate.
Historically these orders have been reserved for cases where a person makes repeated, unmerited applications to the court. However, more recently in Re A (A CHILD) (supervised contact) (s91(14) Children Act 1989 orders) [2021] EWCA Civ 1749 it was noted that whilst the above guidance has substantially withstood the test of time, 22 years later the landscape has changed considerably including the use of social media, smartphones and email. The court observed at paragraph 40 “there is considerable scope for the greater use of this protective filter in the interests of children”.
April 2021 saw the introduction of s91A of the Children Act, which states that the court can make an order where it is satisfied that a further application by a person will put the child or another person at risk of harm. This gives the court wider powers to make an order which can be very helpful in cases where there is a history of domestic abuse and/or concerns that one party is using the proceedings as a means of controlling the other.
How might it help me?
If you find yourself on the end of repeated applications to court or feel that another party is using applications to court to exert control over you, a s91(14) order may be able to offer some protection. It may also be helpful if, for example, there have been extremely long and complex proceedings and it is felt that the children and parties involved need respite from further applications for a period of time.
What happens if an order is made and I need to go back to court?
Firstly, s91(14) orders should not generally cover enforcement applications. This means that if the other party breaches an order you will encounter no difficulties in returning the matter to court by way of an enforcement application.
If you feel the need to go back to court for a new order, or to vary or discharge the existing order then it is important to take legal advice before doing so. If an application is made the court will need to be satisfied at the permission stage that there has been a material change in circumstances that justifies the granting of permission. Only if this test is met will the application be allowed to proceed.
In April 2024 there were changes to the Family Procedure Rules which place a greater onus on parties to potential proceedings to try and resolve their dispute by non-court dispute resolution. Whilst in some cases, e.g. where there has been domestic abuse, this may not be appropriate, in most cases a potential applicant will need to explore this as an option before making any further application whether or not permission is required.
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published here. Definitive advice can only be given with full knowledge of all relevant facts. If you need such advice please contact a member of our professional staff.
The information published across our Knowledge Base is correct at the time of going to press.
