A provision tucked into a fourteenth sub-section of a section at the tail-end of a statute rarely gives rise to much comment, let alone litigation. Section 91(14) of the Children Act 1989 is, however, an exception to that rule.
Section 91(14) provides:
“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.”
Section 91(14) is designed to protect children from the adverse effects of unreasonable serial applications relating to them. Perhaps the most common scenario is where one parent fails to achieve the result that they are seeking and then keeps making frequent repeated applications, in the hope of getting the result they seek. Note that section 91(14) orders do not prevent further applications, they merely provide that further applications may only be made with the permission of the court. Section 91(14) orders usually have a time limit, but they may last for the rest of the child’s minority.
Section 91(14) applications are quite common and, as the law reports confirm, can lead to some very difficult decisions for our judges.
Last week the President considered a mother’s application for a section 91(14) order in the case Q v Q (No 3). Regular readers may recall that this is one of the cases in which the President suggested that the courts service may have to pay for the father’s legal representation. In the event this did not happen, as the father was eventually granted exceptional legal aid funding.
In the judgment last week the President finally dealt with the father’s application for contact with his son, along with applications by the mother for a prohibited steps order and a section 91(14) order. All three applications were dismissed, although here I will only be dealing with the section 91(14) application.
For the purposes of this post the facts can be summarised very quickly. The parties were married in 2005 and their son was born in 2007. In 2009 the father admitted an offence of sexual activity with a child, his nephew. Almost immediately after this the parties separated. In July 2010 the father applied for a contact order. In 2012 the father was arrested for an offence of sexual assault, in connection with which he was subsequently found guilty and served a term of 12 weeks imprisonment. The final hearing of the father’s application and the mother’s applications took place last October/November.
As mentioned above, the President dismissed the mother’s section 91(14) application. The reason for this was quite simple: section 91(14) was to be used “as a weapon of last resort in cases of repeated and unreasonable applications”. Here, whilst it was true that the proceedings had dragged on for “an unconscionably long time”, this was due partly to the father’s second offence, and in particular the long drawn-out process of obtaining public funding. This was not a case of repeated applications, and nor did it display on the part of the father the kind of behaviour which typically founds a successful application for a section 91(14) order. Accordingly, this was not the kind of case in which it was appropriate to make such an order.
What is noteworthy, however, is what the President said next. He said that in coming to the above conclusion he bore in mind the fact that if the father made any further application the court could summarily dismiss it if it found that the application lacked enough merit to justify pursuing the matter. This is nothing new – the President said it himself previously in a 2012 case – but linking it in this way with section 91(14) does seem to give the court another, perhaps easier, option when considering a section 91(14) application. Judges are naturally reluctant to make section 91(14) orders – restricting the right of a parent to make an application in relation to their child is a serious step to take – and this option does provide the judge with ‘another way out’ which doesn’t appear to close the door to future applications in the same way as section 91(14), but can lead to a very similar outcome if a new application is found to be without merit.
The full judgment in Q v Q (No 3) can be read here.
