Section 91.14 Case Law Summary
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Re P (a Minor) (Residence Order: Child's Welfare) [2000] Fam 15 - <Back to Top>
At paragraph 38 in respect of the granting of Section 91.14 Orders, Butler-Sloss LJ said:
"The applicant is not denied access
to the court. It is a partial restriction in that it does not allow him the
right to an immediate inter partes hearing. It
thereby protects the other parties and the child from being drawn into the
proposed proceedings unless or until a court has ruled that the application
should be allowed to proceed. On an application for leave, the applicant must
persuade the judge that he has an arguable case with some chance of success.
That is not a formidable hurdle to surmount. If the
application is hopeless and refused the other parties and the child will have
been protected from unnecessary involvement in the proposed proceedings."
Re C
(Prohibition on Further Applications) [2002] 1 FLR 1136 - <Back
to Top>
Dame Butler-Sloss stated that the trial judge should not have made a
Section 91.14 Order of his own initiative and without warning to
either of the parents. She added that it was "wrong in principle, except
in exceptional cases, to place a litigant in person in the position, at short
notice, of an order that bars him from dealing with any aspect of the case
relating to his children, particularly relating to contact".
Re B
Section 91(14) Order. Duration [2004] EWCA Civ
1996 - <Back to Top>
Section 91.14 Order without time limits
will be the exception, and must be compatible with the primary objective of
restoring a relationship between parent and child. It was held on appeal that
whilst an order under s91(14) may not have been wrong
in principle, to make such an order for the duration of the child's minority
was felt on appeal to send the wrong message.
Stringer v Stringer [2006] EWCA Civ
1617 – <download>
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A Section 91.14 Order had been made restricting the
father from applying for residence or contact until the children reached the
age of 16. The trial judge had set conditions before permission to apply would
be granted in the future. The conditions were that prior to future applications
being considered, the father must product a psychological report confirming he
had sought treatment for matters raised in the Guardian’s report (which the
psychologist must be shown). There is a difference between a judge
commenting on circumstances which might make the granting of permission to make
an application more successful, as opposed to the judge setting conditions. The
trial judge had gone too far.
While no formal application for a Section 91.14 Order
had been made, and no formal notice had been offered to Mr Stringer, informal
notice had been given by way of his having been notified by the Guardian’s
solicitors that it was the Guardian’s intention to request that a Section 91.14
Order be made.
Re C-J (Section 91(14) Order) [2006] EWHC 1491 (Fam) - <download>
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Proper notice had not been given that a Section 91.14
Order might be made. It was reiterated that such applications need to be
properly notified to the parties, and that the requirement for notice can only
be ignored in exceptional circumstances. The District Judge had also gone too
far in making this order, which was made without evidence having been heard.
Re S
(Children) EWCA Civ 1190 - <download>
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to Top>
Reasons must be clearly given for Section 91.14
Orders without time limits.
A (A Child) [2009] EWCA Civ 1548 - <download>
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It is worth noting Wilson LJ’s comments at
paragraph 16:
“16. In relation to the proposed
appeal against the order under s.91(14) of the Act, I
would grant permission, allow the appeal and set aside the order. There
is a view among some family lawyers that the requirement of leave to make an
application is a reasonable feature of many branches of the law and may be
particularly valuable in family proceedings and that it casts no undue hardship
upon a parent (or other person) to be required to show to the court an arguable
case in support of a proposed application under the Act before being permitted
to make it. Indeed I myself might, in other circumstances, have had some
sympathy for that view. But that view is, as all we family lawyers know,
emphatically not the view taken in our jurisprudence about the circumstances in
which it is appropriate to make an order under s.91(14)
of the Act. Ever since the enunciation by Butler-Sloss
LJ of 11 guidelines in Re P
(s.91(14)) (Residence and Religious Heritage) [1999] 2
FLR 573 at 592H to 593F, we have known that the power to make such an order is,
pursuant to her fourth guideline, to be used with great care and sparingly and
is, pursuant to her fifth guideline, generally to be seen as a weapon of last
resort in cases of repeated and unreasonable applications.”
C (A Child) [2009] EWCA Civ 674 - <download>
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It is worth noting the guidance given by Sir Nicholas
Wall, President of the Family Division of the Court, at paragraph 13 of the
judgment:
“(1) Ideally, such an
application should be made in writing on notice in the normal way. The
court can then, having heard all relevant submissions, make an order one way or
the other.
(2) There will, however, be cases in which the
question of a section 91(14) order arises either during or at the end of a
hearing. It may arise on the application of one of the parties, or on the
court’s own initiative. One or more of the parties before the court may
be unrepresented.
(3) In the circumstances identified in paragraph
(2), the court may make an order under section 91(14). It is, however, of
the utmost importance that the party or parties or other persons affected by
the order, particularly if they are in person: (a) understand that such an
application is being made, or that consideration is being given to making a
section 91(14) order; (b) understand the meaning and effect of such an order;
and (c) have a proper opportunity to make submissions to the court in answer to
the application or to the suggestion that a section 91(14) order be made.
(4) Where the parties (and in particular the
person affected by the section 91(14) order) are unrepresented, it may be possible
for the court to deal with the matter in argument without a formal application,
although if the representative for the party affected seeks a short adjournment
to take instructions, such an application should normally be granted. If
there is a substantive objection to the section 91(14) order, then the court
should require the application to be made formally on notice in the normal
way.
(5) Where the party affected by a proposed
section 91(14) order is in person it is particularly important that he or she
(a) understands the effect of such an order; and (b) is given a proper
opportunity to respond to it. This may mean adjourning the application
for it to be made in writing and on notice.
(6) Where the parties are both or all in person,
there is a powerful obligation on any court minded to make a section 91(14)
order to explain to them the course the court is minded to take. This
will involve the court telling the parties in ordinary language what a section
91(14) order is; and what effect it has, together with the duration of the
order which the court has in mind to impose. Above all, unrepresented
parties must be given the opportunity to make any submissions they wish about
the making of such an order, and if there is a substantive objection on which a
litigant wishes to seek legal advice the court should either normally not make
an order; alternatively it can make an order and give the recipient permission
to apply to set it aside within a specified time.”
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