Introduction
Section 91A of the Children Act 1989 widens the circumstances in which the Court can make a section 91(14) order/barring order. This is an order to prevent a party of child proceedings from abusing the Court system by making unnecessary and unreasonable applications to the Court, without the Court’s permission. The High Court recently confirmed that this development enhances the protection available to both a child and their parent/carer.
Impact of Section 91A
Prior to the insertion of section 91A into the Children Act 1989, the legislation did not provide statutory guidance as to when the Court could make a section 91(14) order. Nevertheless, case law established that such an order could be made where one party had made repeated and unreasonable applications, (Re P (A Child) [1999] EWCA Civ 1323).
However, Section 91A provides greater clarification as to when the Court may grant a Section 91(14) order to bar a party from making further applications without the permission of the Court:
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 section 91(14) order would put—
- the child concerned, or
- another individual (“the relevant individual”),
at risk of harm.
What is meant by harm?
The term ‘harm’ is understood to mean physical, psychological and emotional harm. (Re A (A Child) (Supervised Contact) (Section 91(14) Children Act 1989 Orders) [2021] EWCA Civ 1749).
Whilst “another individual” is not defined by statute, Practice Direction 12Q stipulates that a person who:
- has parental responsibility for the child,
- is living with the child,
- has contact with the child, or
- who would be a prospective respondent to a future application,
would likely be classed as “another individual”.
Thus, if the Court establishes that further applications made by a party may result in a risk of physical, psychological and emotional harm to the child or another connected individual, a section 91(14) order may be made.
What this means for victims of abuse and their children
In F v M [2023] EWFC 5, Hayden J noted the importance of a barring order, emphasising that it is a filter that exists to protect the child and the parent with whom the child lives. In the case of F v M, it was noted how the father had exploited litigation to exert further control over the lives of the mother and the relevant children.
Within his judgement, Hayden J expanded the scope in which a barring order can be made. When discussing the importance of section 91A, Hayden J highlighted that a party acting in a controlling and coercive manner, in making repeated applications, can cause harm to the relevant party and children.
In recognising how repeated applications under the Children Act 1989 can act as a vehicle to exert further control over a parent/carer, as well as the relevant children, Hayden J discussed how a barring order can prevent the Court from being “manipulated into becoming a source of harm”. By taking a more holistic approach to the circumstances in which a barring order may be granted, the Courts are now in a better position to offer protection to those who find themselves in a position similar to that of the mother in F v M; namely, facing repeated, unnecessary, and harmful litigation.
The conclusion of Hayden J in the case of F v M cannot be understated; the insertion of section 91A is “transformative” in ensuring that the welfare of the child remains paramount, whilst protecting both a parent and child from “corrosive, demoralising and controlling applications”.
Who can make the application?
A section 91(14) order application can be made by any party of the proceedings and the Court can also make it of its own motion.
What will the Court consider when making an order?
Once the court has decided to make an order, it will consider the terms of the order. This will include the duration of the order and what types of applications the order would prevent.
What happens whilst the order is in place?
The named person in section 91(14) order is barred from making further applications under the Children Act 1989. Should they wish to make an application whilst the order is in place, they will have to seek the Court’s leave/permission. In seeking leave, the named person would have to demonstrate that there has been a material change in circumstances since the order was made.
How National Legal Service can help you.
At National Legal Service, our mission is to make a positive impact in people’s lives.
We keep up to date with the most recent changes in family and children law, to obtain better outcomes for our clients and their children.
We have already started to implement this change in the law in our ongoing cases by assisting clients to obtain these orders and therefore protecting our clients and their children.
