Does Section 91(14) reduce access to justice?

Tuesday 19 April 2022

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An order under s.91(14) of the Children Act 1989 prohibits an individual from making applications under the Act without leave of the court.  Such orders obviously reduce access to the Family Court, sometimes for very good reasons.  Ironically, the reduction in public funding available for litigants in private law cases in recent years—which has itself reduced access to justice—is cited in a recent case as a reason for the increased use of such orders.

In Re: A (A Child) (Supervised contact) (Section 91(14) Children Act 1989 orders) [2021] EWCA Civ 1749, [2022] 4 W.L.R. 25, the Court of Appeal cited a “changed landscape” in terms of smartphones, social media, and in particular “the almost universal use of e-mail as a means of instant communication” (para 34).   The longstanding guideline case of Re P (Section 91(14) (Guidelines)(residence) and Religious Heritage) was decided before such changes occurred.

According to Re: P’s guidelines, orders under s.91(14) are “to be used with great care and sparingly, the exception and not the rule” and “generally to be seen as a useful weapon of last resort” (guidelines (4) and (5)).  In Re: A, King LJ opined that “it seems to me that in the changed landscape…there is considerable scope for the greater use of this protective filter in the interests of children” (para 40).

The relative unavailability of legal aid for private law children’s cases was seen as relevant because, in Re A, the mother, a litigant in person without the “steadying influence” of legal advisers, made multiple applications and engaged in a relentless campaign of emailed allegations against the father, both to the court and to a wide range of professionals; she also made formal complaints about many of the professionals involved in the case and sent lengthy emails to the judge below and even to the Court of Appeal.

Unsurprisingly, the Court below and the Court of Appeal concluded that the mother’s campaign was harmful to the child, and the order prohibiting the mother from making applications in relation to the child without the leave of the Court for a period of two years was upheld.

To be clear, Re: A does not change the law per se as to the correct use of orders under s.91(14). However, the dicta cited above about “considerable scope for greater use” is sure to be deployed in future whenever such an order is sought.

Have ‘modern times’ changed so much?  Smartphones and the ubiquity of emails have been around for many years.  Such media may make it easier for badly behaved litigants to cause trouble, but that doesn’t necessarily justify a wider use of even partial restrictions on access to the court.  The guidelines always allowed for courts to impose s.91(14) orders on parents like the mother in Re A.  The risk is that the Court of Appeal’s change in emphasis will lead to judges making orders in cases that are less clear cut, and access to justice may suffer as a result.

William Tautz is a member of the Garden Court Chambers Family Team.

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