Procedure where permission required to make children application

Children|Divorce|March 5th 2019

I have often mentioned here orders made under section 91(14) of the Children Act, which prohibit a party from making a further application in relation to their children, without the permission of the court. Such orders are normally made when that party has made multiple applications, and the court considers that it would be best (for the children in particular) to restrict any further applications, usually for a set period of time.

To go into a little more detail, if the party against whom such an order has been made wishes to apply to the court for an order, for example a child arrangements order, they must first apply to the court for leave (or permission) to make the application. Permission will only be granted if the court considers that there is a need for the case to be looked at again.

But strangely there is no set procedure that the court should follow if the party against whom a s.91(14) order has been made applies for permission to make an application. In particular, should the other party have a say in whether permission should be granted? This was one of the issues to be determined in the recent case P & N (Section 91(14): Application for Permission To Apply: Appeal).

The relevant facts in the case were that proceedings in relation to the parties’ two children, now aged 8 and 6, had been ongoing pretty well since 2013, shortly after the parties separated. I won’t go into details, but we are told that in the course of the litigation “dozens of court orders, multiple evidential hearings, and ultimately hundreds of pages of evidential material” were generated.

In January 2015 the court, unusually, made an order that the father should have no contact, direct or indirect, with the children. Within months the father made a second application for a child arrangements order. That application was dismissed in July 2016, when the court made the s.91(14) order, prohibiting the father from making a further application for an order in respect of the children, without obtaining the prior permission of the court. The order was expressed to last for a period of 3 years. The order recited that the father had acted “inappropriately throughout the court hearing to include using foul and extremely abusive language towards counsel for the mother and towards the judge”, that the father did not desist from using foul language when warned of the risk of contempt, and “that he had to be removed from the court by security staff”. The judge making the order recorded that “unless and until the father engages the services of a medical/therapeutic or child care professional in dealing with the issues” then any application made by the father for leave to issue a child arrangements application was likely to be unsuccessful.

After July 2016 the father made several further applications, and his second application for permission was allowed in July 2018. The judge had dealt with the application without notice to the mother. The mother was then notified of the outcome, and she sought to appeal, on the grounds that the judge was wrong to grant the father’s application without hearing from her, or receiving her representations. Her appeal went before Mr Justice Cobb in the High Court.

Mr Justice Cobb allowed the appeal. I will only deal with the procedural aspect.

Mr Justice Cobb considered that the judge had used the wrong procedure. Having decided on the papers that the father’s application was not hopeless, and that he had established a prima face case, he should have afforded the mother the opportunity to make representations on that application. Even if, strictly speaking, the procedure that the judge had followed was not irregular, on the facts of the case, it was wrong not to have given the mother the opportunity to respond to the application. Amongst those facts were that the proceedings had a long and ‘toxic’ history, and “very considerable caution should therefore have been exercised” before re-igniting that litigation; and that there was no evidence (other than the word of the father) that the father had addressed the issues recorded by the judge when the s.91(14) order was made.

In the circumstances the case was remitted for re-hearing of the father’s permission application, on notice to the mother.

You can read Mr Justice Cobb’s full judgment here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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