The family courts evolve and adapt to reflect acceptable boundaries of behaviour and conduct in broader society, including the approach to abusive behaviours. In 2021, within the family courts, two key judgments were published: F v M [2021] and Re H-N [2021]. Both judgments examined the nature and management of private child law cases when there are allegations of domestic abuse.
As 2021 drew to a close, a third related judgment addressing management of harmful behaviour was delivered by the Court of Appeal: Re A [2021]. Giving the leading judgment, King LJ reviewed the utilisation of s91(14), Children Act 1989 (ChA 1989) as to restrictions on further applications to that point in time, judges having been informed by guidelines produced in Re P (A Child) [1999], and concluded with a clear message that in today’s society s91(14) has a much broader scope. Where appropriate, King LJ endorsed using s91(14) more readily to place a judicial filter between a prospective applicant and victim of domestic abuse who would otherwise face the prospect of a return to court on grounds that
aren’t sound or of substance and, if proceeding, could facilitate further harm.
This article will consider Re A (A Child) together with the broader circumstances in which King LJ suggested s91(14) may properly be employed to further enhance the court’s ability to protect victims of domestic abuse or harm, and (briefly) the key provisions of s67, DAA 2021, which introduce a new s91A into ChA 1989 and are scheduled to come into force in Spring 2022.
Background
Section 91(14), ChA 1989 came into force in October 1991. When an s91(14) order is made, it provides, as a prerequisite, that a judicial assessment of the merits of the prospective application must take place before said application may proceed, ie:
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 specified kind may be
made with respect to the child concerned by any person named in the order
without leave of the court.
Prior to s91(14), the court made equivalent orders based on its inherent jurisdiction.
Following its introduction, s91(14) orders were made based on the individual
circumstances of each case, see for example B v B [1996]. No further guidance is provided
in ChA 1989 about when it may or may not be appropriate to make an s91(14) order. In Re
P (A Child), Butler Sloss LJ said (at para 40):
There is no guidance in the section as to the circumstances in which the
restriction may be imposed in a Children Act application. Such an omission, is,
no doubt, intentional and designed to give the court a wide discretion.
In Re P (A Child), Butler-Sloss LJ reviewed the case law on s91(14), drawing together the
threads to provide a cohesive set of guidelines (at para 41), setting out when such orders
may be appropriate. She prefaced her list with a statement that they were ‘guidelines
intended to assist and not to replace the wording of the section’. The guidelines state that:
- the provisions of s91(14), ChA 1989 should be read in conjunction with s1(1), ChA
1989, which makes the welfare of the child the paramount consideration;
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;
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 their child, and the power should therefore be used with great care and
sparingly, ie as the exception and not the rule, and is generally to be seen as a useful
weapon of last resort in cases of repeated and unreasonable applications;
in suitable circumstances (and on clear evidence), a court may impose the leave
restriction in cases where the welfare of the child requires it, even where there is no
past history of making unreasonable applications and in such cases the court will
need to be satisfied that the facts go beyond:
