The development of Section 91(14) orders
Section 91(14) of the Children Act 1989 allows the court to order that further applications in relation to a child or children may not be made without permission from the court. A section 91(14) order may be made on the application of either party or on the court’s own motion.
The purpose of the provision is to protect a parent and a child from any unnecessary and vexatious applications. By requiring an applicant to first obtain permission from the court, the court can provide a protective filter limiting the harm that may be caused if the application were to be issued.
Re P guidelines
Re P (Section 91 (14) Guidelines) (Residence and Religious Heritage) 1999 2 FLR 573 has historically been a key authority in relation to section 91(14) orders. In Re P, Butler-Sloss LJ laid down guideline principles for the making of orders under section 91(14). In summary, the guidelines are as follows:
1. The welfare of the child is the paramount consideration;
2. The courts’ power is discretionary;
3. Making such an order is a statutory intrusion into the right of a party to bring proceedings before the court;
4. The power is therefore to be used with great care and sparingly, the exception and not the rule;
5. It should be the weapon of last resort in cases of repeated and unreasonable behaviour;
6. The degree of restriction should be proportionate to the harm it is intended to avoid.
The guidelines adopted in Re P made clear that only in the most exceptional circumstances would section 91(14) orders be made.
Developments of s91(14) orders within the modern context
In June 2020, a report on how the Family Court protects children and parents in cases of domestic abuse was published. The report (titled, ‘Assessing the Risk of Harm to Children and Parents in Private Law Children Cases’) concluded that the threshold for making section 91(14) orders was too high and that section 91(14) orders were not being used enough to prevent perpetrators continuing to abuse victims. The report therefore recommended that amendments to section 91(14) should be made and the ‘exceptionality’ guideline in Re P be removed.
Following the report, the Court of Appeal in Re A (A Child) (Supervised Contact) (Section 91(14) Children Act 1989 Orders) [2021] EWCA Civ 1749 considered the guidelines set out in Re P and the impact the new section 67 of the Domestic Abuse Act 2021 (“DAA 2021”) may have. In Re A, the Court of Appeal recognised that a judgement written over 20 years ago needed to be reflective of a modern-day society, taking into account the universal use of emails and the withdrawal of legal aid from most private law proceedings. In some instances, despite the case management powers of the court, litigants have bombarded the other party with emails as a campaign of oppressive behaviour causing significant distress and anxiety.
In Re A, King LJ highlighted the historical judicial reluctance to making section 91(14) orders, stating the guidelines in Re P led to ‘an understandable, but perhaps misplaced, reluctance for judges to make orders under s19(14), save for in the most egregious cases’.
In his judgement, King J made clear that changes in the landscape have considerably widened the scope for greater use of s.91(14) orders in the present day, to protect a party who is suffering from being subject of ‘lawfare’ (i.e. the use of court proceedings as a weapon of conflict). It has also been made clear that using court proceedings as a weapon of conflict is a form of coercive control.
New statutory guidance
Section 67 of the DAA 2021 has been in force since 19 May 2022 and amended section 91(14) by inserting a new section 91A into the Children Act 1989. This provision clarifies that section 91(14) orders are available where proceedings are causing harm or are used as another form of abuse.
In addition, a new Practice Direction 12Q was introduced and provides further useful guidance on both the use of section 91(14) orders, and the procedure.
Impact in practice
Whilst the changes in the DAA 2021 have provided a statutory footing to the well-established principles set out in Re A and Re P, it remains to be seen how common section 91(14) orders will become. The recent developments represent a much-needed advancement towards the protection of vulnerable parties from ex-partners who use the court process as a form of coercive control. Although these orders should be used as a last resort, it is an option that should not be forgotten nonetheless.