Bringing repeated court applications to a stop

The legal issue

Applications about the same child had been made repeatedly. Each one required the other parent to respond, to file evidence and to attend hearings, and each one reopened arrangements that had already been decided.

The legal question was not whether the latest application should succeed. It was whether the court should, on disposing of it, restrict the making of further applications without its permission - and if so, of what kind, by whom, and for how long. That is a distinct question with its own statutory test, and it is easy to lose it inside the argument about the underlying application.

In this case, Kabir Family Law was asked to advise after the family had already experienced a prolonged period of children proceedings. Our role was to review the procedural history, identify the evidence relevant to the child’s welfare and the effect of continued litigation, and advise on whether a proportionate section 91(14) order should be considered.

The law this rests on

• Children Act 1989 s.1(1)
• Children Act 1989 s.1(2)
• Children Act 1989 s.1(3) and s.1(3)(e)
• Children Act 1989 s.1(5)
• Children Act 1989 s.91(14)
• Children Act 1989 s.91(15) and s.91(17)
• Children Act 1989 s.91A
• Family Procedure Rules 2010 Part 12
• Family Procedure Rules 2010 rule 12.12

How we approached it

The power is in Children Act 1989 s.91(14). On disposing of any application for an order under the Act, the court may order that no application for an order under the Act of any specified kind may be made with respect to the child concerned by any person named in the order without the leave of the court. Three features of that wording control everything that follows.

First, the timing. The power arises on disposing of an application. It is exercised at the end of proceedings, not as a free-standing application launched on its own.

Second, the scope. The order bites on applications of a specified kind, made with respect to the child concerned, by a person named in the order. Each of those is a variable the court sets. An order can be drawn narrowly - one kind of application, one named person, one child - and the narrower it is, the easier it is to justify.

Third, and most importantly, what it actually does. It does not remove anyone's right to apply. It requires them to obtain the court's leave before an application is issued. It is a filter, not a bar, and describing it otherwise to a parent sets them up for disappointment later.

Section 91A, inserted by the Domestic Abuse Act 2021, makes further provision about s.91(14) orders and changed the practical picture considerably. Section 91A(2) provides that the court may make such an order where it is satisfied that the making of an application for an order under the Act by any person who is to be named in the s.91(14) order would put the child concerned, or another individual, at risk of harm. Section 91A(3) provides that in relation to a person aged eighteen or over, "harm" means ill-treatment or the impairment of physical or mental health. That matters: the risk the court is protecting against does not have to be a risk to the child. Repeated litigation directed at an adult, and its effect on that adult's mental health, is within the section in terms.

Section 91A(5) provides that a s.91(14) order may be made on the application of the relevant individual, of the child, or of another party to the proceedings, or by the court of its own motion. A parent worried about raising it should know the court can and does raise it itself. Section 91A(4) then deals with what happens later: where a person named in the order applies for leave to make an application, the court must, in determining that application, consider whether there has been a material change of circumstances since the order was made. Section 91A(4) requires the court, when deciding a later application for permission, to consider whether there has been a material change of circumstances since the section 91(14) order was made. A material change is an important consideration, but it is not automatically a condition of permission being granted. The court retains a discretion and will consider the circumstances of the proposed application as a whole.

Around all of this the general principles apply. The child's welfare is the court's paramount consideration under s.1(1) in determining any question with respect to the child's upbringing. Section 1(2) requires the court to have regard to the principle that delay is likely to prejudice the child's welfare, and repeated proceedings are a form of prolonged uncertainty. The welfare checklist in s.1(3) applies to the underlying application, and s.1(3)(e) - any harm the child has suffered or is at risk of suffering - is where the effect of continuous litigation on the child is properly located. Section 1(5) reminds the court not to make any order unless doing so would be better for the child than making no order.

The procedure is governed principally by Practice Direction 12Q, which supplements Parts 12 and 18 of the Family Procedure Rules 2010. A section 91(14) order can only be made when the court is disposing of another application under the Children Act 1989. Under PD12Q paragraph 6.2, a permission application after a section 91(14) order must be made in Form C100, which must also set out the substantive Children Act application the person wishes to make if permission is granted. A C2 remains relevant to an application for the section 91(14) order within the existing proceedings. In cases involving alleged or proven harm, including domestic abuse, the court should consider the question early and keep it under review so that any necessary findings and fair opportunity to respond can be addressed before final disposal.

There are also two related but different provisions in the same section that are frequently confused with s.91(14), and it is worth knowing they exist so they are not mistaken for it. Section 91(15) provides that where an application has been made for the discharge of a care order, a supervision order or an education supervision order, for the substitution of a supervision order for a care order, or for a child assessment order, no further application of those kinds may be made within six months of the earlier one being disposed of without leave. Section 91(17) applies a similar six-month restriction where an application for contact under s.34 has been refused. Both operate automatically. Neither has anything to do with a s.91(14) order, which is discretionary and has to be made.

The honest limits matter here more than in most areas, because the shorthand name of this order oversells it. It lasts only for the period the court specifies. It covers only the kinds of application specified in it, only in relation to the child concerned, and only for the person named. It does not prevent an application under a different Act. It does not stop the named person applying for leave, and a leave application is itself a step the other parent may have to respond to. And where there has been a material change of circumstances, s.91A(4) means the court is required to take that into account - which is exactly as it should be, because circumstances involving children do change.

A section 91(14) order can also contain practical protection about any future application for permission. The court may direct that an application for permission is not served on the other parent until it has first considered its merits. It may also make that initial decision without an oral hearing. Those steps may matter where the purpose of the order would otherwise be undermined simply by the arrival of further court papers.

A section 91(14) order is not routine. It restricts a named person’s ability to start specified Children Act proceedings without first seeking permission, so the court must consider whether the restriction is justified and proportionate on the evidence. The court should consider both the duration of the order and the types of application it covers, and explain why the scope chosen is appropriate.

The outcome

The orders open to a court on a question of this kind are: an order under Children Act 1989 s.91(14) that no application for an order under the Act of a specified kind may be made with respect to the child by a named person without the leave of the court, for a period the court specifies; the same order drawn more narrowly, restricted to particular kinds of application; a refusal to make one; and, on any later leave application by the named person, permission to proceed or a refusal, determined having considered whether there has been a material change of circumstances under s.91A(4). The court may make the order on the application of a party, of the child, or of its own motion under s.91A(5).

Which of these a court chooses is governed by s.91A(2) - whether a further application would put the child or another individual at risk of harm, with harm for an adult defined by s.91A(3) as ill-treatment or the impairment of physical or mental health - and by the general principles in s.1(1), s.1(3) and s.1(5).

The court made an order under section 91(14) of the Children Act 1989. In broad terms, it required the named party to obtain the court’s permission before making further specified Children Act applications concerning the child.
The order did not create an absolute prohibition on future applications or prevent the named party from having a role in the child’s life. It introduced a permission stage, allowing the court to consider any proposed further application before substantive proceedings could continue.
The outcome was determined by the evidence and circumstances of this individual case. It does not guarantee, predict or determine the outcome in any other family’s case.

What to take from this

• It is a filter, not a bar. Children Act 1989 s.91(14) does not remove the right to apply; it requires the named person to obtain the court's leave first, for the kinds of application specified, in relation to the child concerned.
• It is made at the end of proceedings. The power in Children Act 1989 s.91(14) arises on disposing of an application, so it is raised within existing proceedings rather than started on its own.
• The risk of harm need not be to the child. Children Act 1989 s.91A(2) covers a risk to the child or to another individual, and s.91A(3) defines harm for an adult as ill-treatment or the impairment of physical or mental health - so the effect of repeated litigation on a parent is squarely within the section.
• The court can raise it itself. Children Act 1989 s.91A(5) allows the order to be made on the application of the relevant individual, the child or another party, or by the court of its own motion.
• A later permission application must address change. When deciding whether to grant permission, the court must consider whether there has been a material change of circumstances since the section 91(14) order was made. That is a required consideration, not an automatic rule that permission can never be granted without it.
• Narrow orders are easier to justify. The kinds of application, the person named and the period are all variables the court sets under Children Act 1989 s.91(14), and asking for what is needed rather than everything is usually the stronger position.
• Do not confuse it with the automatic six-month restrictions. Section 91(15) creates a six-month leave requirement after certain specified applications, including applications concerning care, supervision, education supervision and child assessment orders. Section 91(17) creates a similar restriction following the refusal of an application under section 34. These are statutory restrictions distinct from the discretionary, case-specific order under section 91(14).