Law - Section 91(14) orders

LEADING CASE
(RE P (SECTION 91(14) GUIDELINES) (RESIDENCE AND RELIGIOUS HERITAGE) [1999] 2 FLR 573

RE P (A CHILD: RESIDENCE ORDER: CHILD’S WELFARE) [1999] 2 FCR 289 (CA)
(a) Question:
When and upon what basis may the court restrict the making of future applications pursuant to Section 91(14) of the Act?
(b) Facts:
An orthodox Jewish family had concluded shortly after birth that they could not care for a daughter with Down’s Syndrome; the local authority, after a long and fruitless search for orthodox Jewish foster parents, had placed the child with non-practising Roman Catholics. At the end of lengthy litigation (the child having been in this house for 8 years) the judge refused the parents’ application for residence, made an order for restricted contact and also an order under Section 91(14).
(c) Decision:
(upholding the judge)
That although no real criticism could be made of the parents’ conduct of proceedings, the order was required and the court offered guidance (pp 592-3/310-1);
i. Section 91(14) should be read as subject to Section 1.
ii. The power under Section 91(14) is an exercise of discretion.
iii. It is a significant intrusion on legal rights.
iv. The order should therefore be the exception and not the rule.
v. It is a useful weapon of last resort in cases of repeated and unreasonable applications.
vi. If the child’s welfare demands it, however, it is not confined to such cases.
vii. It may be used if two conditions are satisfied: first, the case goes beyond the usual problems of setting-in time and hostility; and secondly in the absence of an order if the child or primary carers will be subject to ‘unacceptable strain’.
viii. The court may act of its own motion provided parties have been given the opportunity to be heard.
ix. The order may be with or without restriction of time.
x. The court should specify the type of application which is to be restrained as well as the duration of the order.
xi. Only most exceptionally should the order be made ex parte.
(d) Comment:
i. This case hopefully resolves many of the difficulties experienced in practice based on the courts’ understanding of the line of cases culminating in B v B [1997] 1 FLR 139 (Leading Case 97/2 in this series).
ii. No longer is it necessary to look only (or even mainly) at the conduct of proceedings provided that the exceptional nature of the order is borne in mind.
iii. It is important in making an order to specify what types of applications are being restricted and for how long.
iv. The Court of Appeal is satisfied that an order under Section 91(14) does not contravene the E.C.H.R.
v. Any application for leave under Section 91(14) to make an application should in the first instance be made ex parte; the court can then decide whether to refuse the application or list it for an inter partes hearing with or without statements. It is possible to request a Section 7 report (particularly if the child is older) before finally determining the application for leave.
vi. The test to be applied on such an application for leave is - "...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".