Re X and Others
| Jurisdiction | England & Wales |
| Judge | Greensmith |
| Judgment Date | 15 March 2024 |
| Neutral Citation | [2024] EWFC 62 |
| Court | Family Court |
| Docket Number | Case no: LV20P01742/PR21P00042 |
[2024] EWFC 62
HIS HONOUR JUDGE Greensmith
Case no: LV20P01742/PR21P00042
Upon hearing:
Mr John Ison (a McKenzie Friend to who a right of audience has been granted) for the Applicant Father and from the Father in person upon submissions; and,
Mr Gareth Thomas of counsel for the Respondent Mother.
SECOND JUDGMENT on conclusion of an application under s8 Children Act 1989s8 Children Act 1989: An application for a s91(14) order
HHJ Greensmith
The background
I have delivered a judgment finalising the father's application to vary a section 8 Child Arrangement Order made in 2018. In advance of finalisation of these proceedings the mother has made a formal application (by way of C2) for the court to make an order under s91(14) restricting the father form making further applications without first obtaining leave. The mother suggests a period of three years. The Guardian for the children supports the application and suggests seven years. The father does not agree that an order should be made.
I have decided to deliver a discreet judgment on the mother's application although it is in the context of the father's application being finalised.
The Law
For the benefit of the parents and the father in particular I will set out the law in full as it may assist the father better understand why I have made the decision I have.
By virtue of S91(14) and S91A the court may make orders restricting further applications to the court for a period of time.
S91(14) provides:
(14) 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.
S91A supplements the provision:
(2) 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 the section 91(14) order would put—
(a) the child concerned, or
(b) another individual (“the relevant individual”) is at risk of harm.
(5) A section 91(14) order may be made by the court
(a) on an application made
(iii) by any person who is a party
(b) of its own motion
(4) Where a person who is named in a section 91(14) order applies for leave to make an application of a specified kind, the court must, in determining whether to grant leave, consider whether there has been a material change of circumstances since the order was made. (my emphasis)
4. There is guidance in the application of s91(14) dating back to Re P (2000) which has been put into a “modern context” by King LJ in Re A (A CHILD) (supervised contact) (s91(14) Children Act 1989 orders) [2021] EWCA Civ 1749. The essence of Her Ladyship's guidance is contained in paragraphs 32 to 39 of her judgment. I make no apologies for incorporating such a large extract of Her Ladyship's judgment; I deem this necessary so that the parties and the father in particular will have a full grasp of the legal principles involved in the hope that he will be best equipped to accept the order a I am going to make.
32. The classic statement of the legal principles at play when making a s91(14) order were set out by Butler-Sloss LJ in the form of guidelines in Re P (Section 91(14) (Guidelines)(residence) and Religious Heritage) sub nom: In Re P (A Minor)(Residence Order: Child's Welfare) [2000] Fam 15; [1999] 2 FLR 573 at p19. The guidelines are as follows: “Guidelines
(1) Section 91(14) of the Act of 1989 should be read in conjunction with section 1(1), which makes the welfare of the child the paramount consideration.
(2) The power to restrict applications to the court is discretionary and in the exercise of its discretion the court must weigh in the balance all the relevant circumstances.
(3) An important consideration is that to impose a restriction is a statutory intrusion into the right of a party to bring proceedings before the court and to be heard in matters affecting his/her child.
(4) The power is therefore to be used with great care and sparingly, the exception and not the rule.
(5) It is generally to be seen as a useful weapon of last resort in cases of repeated and unreasonable applications.
(6) In suitable circumstances (and on clear evidence), a court may impose the leave restriction in cases where the welfare of the child requires it, although there is no past history of making unreasonable applications.
(7) In cases under paragraph 6 above, the court will need to be satisfied first that the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the court and the all too common situation where there is animosity between the adults in dispute or between the local authority and the family and secondly that there is a serious risk that, without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain.
(8) A court may impose the restriction on making applications in the absence of a request from any of the parties, subject, of course, to the rules of natural justice such as an opportunity for the parties to be heard on the point.
(9) A restriction may be imposed with or without limitation of time.
(10) The degree of restriction should be proportionate to the harm it is intended to avoid. Therefore, the court imposing the restriction should carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained and the duration of the order.”
King LJ continues:
… it is worth placing the Re P guidelines into a modern context and also considering how the provision in section 67 of the Domestic Abuse Act 2021 may impact upon the guidelines when the time comes for that section to be brought into force.
34. Although the guidelines have substantially withstood the test of time and have received the endorsement of this court on a number of occasions in the intervening period, the fact remains that they were set out in April 1999, some 22 years ago. In the intervening period the forensic landscape has changed out of all recognition. Amongst the many advances is the advent of the smart phone and of social media in all its forms. Of particular relevance in this context is the almost universal use of email as a means of instant communication. Another development of relevance is that as a result of the withdrawal of legal aid in the majority of private law cases, a large proportion of parents are unrepresented and therefore do not have, as the judge described it in the present case, the ‘steadying influence’ of legal advisors.
35. One of the consequences of these changes which is seen not uncommonly in private law proceedings is that the other parties, and often the judge him or herself, can be (and often are) bombarded with emails from a parent, whether male or female, who is representing him or herself. Such behaviour may be the result of anxiety but in other cases, as in this case, it is part of a campaign of behaviour by one parent against the other which amounts to a deeply disturbing form of oppressive behaviour on their part.
36. Regardless of the motivation, behaviour of this type, as exhibited by the mother in this case by way of an example, is deeply distressing to the parent who is the subject of such abuse and litigation at this level and is highly debilitating to each of the parties and to their children. All too often such communications are ill-considered and ill-judged with the consequence that every minor dispute or misunderstanding is met with an application to the judge. More importantly, the distress and anxiety caused to the other parent and to the children at the centre of such a raging dispute cannot be overestimated, nor can the damaging consequences where the focus of the litigation veers away from what, on any objective view, would and should be regarded as the real issues going to the welfare of the children concerned.
37. I referred to similar problems in a civil context in Agarwala v Agarwala [2016] EWCA Civ 1252 where I said at [72] that:
“Whilst every judge is sympathetic to the challenges faced by litigants in person, justice simply cannot be done through a torrent of informal, unfocussed emails, often sent directly to the judge and not to the other parties. Neither the judge nor the court staff can, or should, be expected to field communications of this type. In my view judges must be entitled, as part of their general case management powers, to put in place, where they feel it to be appropriate, strict directions regulating communications with the court and litigants should understand that failure to comply with such directions will mean that communications that they choose to send, notwithstanding those directions, will be neither responded to nor acted upon.”
38. Even though every family judge has the case management powers to which I referred in Agarwala, often even strict directions designed to limit the torrent of emails have no effect. The easy accessibility to the court and the other parties as a result of emails means that Guideline 5 in Re P which says that s91(14) orders are: ‘generally to be seen as a useful weapon of last resort in cases of repeated and unreasonable applications’, has even more resonance now than it did in 1999. It seems, however, that the phrase ‘weapon of last resort’, when put together with Guideline (4) which says that: ‘The power is therefore to be used with great care and sparingly, the exception and not the rule’, has led to an understandable, but perhaps misplaced,...
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