In the past, it was always very difficult to obtain a section 91 (14) order, imposing restrictions on the ability of a parent to apply for a section 8 order.

This was governed by the principles established as far back as 1999 in the case of Re P (Section 91 (14) Guidelines) (Residence and Religious Heritage) 1999 2 FLR 573. The guidelines established by Butler-Sloss LJ were as follows: (highlights my own).

1. Section 91 (14) should be read in conjunction with s 1(1) which makes the welfare of the child the paramount consideration.
2. The power to restrict applications to the court is discretionary and in the exercise of its discretion the court must weigh in the balance all the relevant circumstances.
3. An important consideration is that to impose a restriction is a statutory intrusion into the right of a party to bring proceedings before the court and to be heard in matters affecting his/her child.
4. The power is therefore to be used with great care and sparingly, the exception and not the rule.
5. It is generally to be seen as a weapon of last resort in cases of repeated and unreasonable
6. In suitable circumstances (and on clear evidence), a court may impose the leave restriction in cases where the welfare of the child requires it, although there is no past history of making unreasonable applications.
7. In cases under para 6 above, the court will need to be satisfied first that the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the court and the all too common situation where there is animosity between the adults in dispute or between the local authority and the family; and secondly that there is a serious risk that, without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain.
8. A court may impose the restriction on making applications in the absence of a request from any of the parties, subject, of course, to the rules of natural justice such as an opportunity for the parties to be heard on the point.
9. A restriction may be imposed with or without limitation of time.
10. The degree of restriction should be proportionate to the harm it is intended to avoid.
11. It would be undesirable in other than the most exceptional cases to make the order ex parte.

Just by looking at these guidelines, it was clear that only in the most limited of cases, in the narrowest of circumstances, and often for the most limited periods of time, that such orders could be made and the case law until recently in fact narrowed the definitions even further.

However, for those of us who regularly represent victims of domestic abuse in court, we welcome the sea change since the instruction of s.91(A) into the Children Act further to the change in law brought in by s.67 of the Domestic Abuse Act 2021 (2021 c 17).

It now provides that :

The circumstances in which the court may make a section 91(14) order include, among others, where the court is satisfied that the making of an application for an order under this Act of a specified kind by any person who is to be named in the section 91(14) order would put—

(a)     the child concerned, or

(b)     another individual (“the relevant individual”),

at risk of harm.

(3)     In the case of a child or other individual who has reached the age of eighteen, the reference in subsection (2) to “harm” is to be read as a reference to ill-treatment or the impairment of physical or mental health.

(4)     Where a person who is named in a section 91(14) order applies for leave to make an application of a specified kind, the court must, in determining whether to grant leave, consider whether there has been a material change of circumstances since the order was made.

(5)     A section 91(14) order may be made by the court—

(a)     on an application made—

(i)     by the relevant individual;

(ii)     by or on behalf of the child concerned;

(iii)     by any other person who is a party to the application being disposed of by the court;

(b)     of its own motion.

(6)     In this section, “the child concerned” means the child referred to in section 91(14).”

In recent hearings it has been clear to me that Judges are now far more likely to impose such orders, and also far more likely to set clear definitions as to what would constitute a ‘material change’ before leave will be granted, for example evidence of successful completion of a Domestic Abuse Perpetrators Programme or therapy.

This change can be seen in the recent cases of  Re A (Supervised Contact) (s 91(14)) [2021] EWCA Civ 1749. Whilst the guidelines of Re P (above) are upheld, in this decision King LJ also noted how the huge change in society in the last 22 years means that the opportunity to abuse or control the other party is much easier by virtue of the ability of one parent to bombard the other by way of email or communication through social media. She also noted that the fact that legal aid has been removed in the majority of private law cases, means that parties are often unrepresented and as a result also less able to be steadied by the advice of a professional and in those circumstances, the ability to abuse the other by way of litigation is far more likely.

In her decision, she emphasised that it is not always necessary to demonstrate a pattern of excessive applications, such orders can be made even if there is only one application provided that ‘a person’s conduct overall is such that an order made under s91(14) is merited’.

This was in line with principle 6 of Re P. ‘In suitable circumstances (and on clear evidence), a court may impose the leave restriction in cases where the welfare of the child requires it, although there is no past history of making unreasonable applications… In my judgment the sort of harassment of the father seen in this case, in the form of vindictive complaints to the police and social services, is an example of circumstances where it would be appropriate to make an order under s91(14), even if the proceedings were not dogged by numerous applications being made to the judge.

Furthermore, her decision aligned with the provisions of section 91 (14) A in that she recognised that the behaviour of one party in proceedings is often a way to further abuse their ex-partner;

‘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.

The guidelines in Re P should now be applied with the above matters in mind and in my judgment the prolific use of social media and emails in the modern world may well mean that orders made under s91(14) need to be used more often in those cases where the litigation in question is causing either directly or indirectly, real harm’.

The provision of the Domestic Abuse Act above now reiterates this in law and is a welcome way of now enabling us to obtain such orders when one party is using applications, and is likely to make further applications, as a means of further controlling and coercing the other parent.

Teleri Jones

Atlantic Chambers