Assessing Risk of Harm to Children and Parents in Private Law Cases: Could Section 91(14) be used more effectively?

1. Assessing Risk of Harm to Children and Parents in Private Law Cases

In June 2020, the Ministry of Justice published: Assessing Risk of Harm to Children and Parents in Private Law Cases. One of the areas considered by the report was ‘the challenges relating to the application of the Practice Directions and section 91(14) orders’

The report gathered evidence through questionnaires from a number of sources. Predominately the evidence considered information from lay parties (mainly mothers) with direct experience of the family justice system[1]. Those individuals were self-selecting and there was no wider consideration of the case papers and therefore no objective analysis undertaken as to how the court reached its decision and whether the determination mirrored stated experience of the individual. A more limited amount of evidence was gathered from professionals working within the family justice system.

2. Domestic Abuse

Defining domestic abuse

There has been a significant cultural evolution in the understanding of domestic abuse over the last 20 years. This development can be charted through consideration of Practice Direction 12J and relevant case law. A useful starting point is the guidance detailed in Re L, V, M, H (Contact: Domestic Violence) [2001] Fam 260 which saw a “heightened awareness of the consequences of exposure to domestic violence” and an acknowledgement that there had been a “tendency for courts not to tackle allegations.”

PD12J was originally introduced in 2008 and outlined the approach to be taken in child arrangement cases where domestic abuse is an issue. It has been updated twice, once in 2014 and once in 2017. The updates provided guidance regarding the application of PD12J including clarity in relation to the conduct of finding of fact hearings and changed the terminology from domestic violence to domestic abuse.

Section 76 of the Serious Crime Act 2015 created a new criminal offence of Controlling or Coercive Behaviour in an Intimate or Family Relationship. This offence came into force on 29 December 2015.

Identifying domestic abuse

Practitioners will likely have experience of their own clients not truly recognising the signs of domestic abuse, particularly as events taken in isolation may not appear abusive in and of themselves. There is often a need to demonstrate a pattern of behaviour, which can be difficult to encapsulate within a Scott Schedule

There is certainly a widening social understanding of domestic abuse. It is often useful to look to popular culture as a measure of wider public understanding. It was as recently as 2016 that The Archers ran a storyline about domestic abuse in the relationship of Helen and Rob Titchener. The public understanding of domestic abuse is still not well established.

The clearest example of the Court failing to approach domestic abuse correctly is the recent Court of Appeal case of JH v MF [2020] EWHC 86 (Fam) appealing the decision of HHJ Tolson QC. A finding of fact hearing concerning sexual abuse allegations presents an extremely worrying approach to domestic abuse allegations, a complete disregard for PD12J and a failure to acknowledge the realities of domestically abusive relationships. Mrs Justice Russell makes it plain that she regarded the analysis of the judge to be fundamentally flawed, at para 33: “the judge’s approach towards the issue of consent is manifestly at odds with current jurisprudence, concomitant sexual behaviour, and what is currently acceptable socio-sexual conduct.”

3. Section 91(14)

There is limited guidance within the statute regarding the application of section 91(14), save for the following:

‘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’.

Case Law

The following cases are likely to be of assistance, the focus is on more recent case law. It is not an exhaustive list. The cases are hyper-linked for ease of reference.

Re P (A Minor) (Residence Order: Child’s welfare) [2000] Fam 15

The starting point is Re P (A Minor) (Residence Order: Child’s welfare) [2000] Fam 15. There is a common view that applications pursuant to section 91(14) require a history of unreasonable applications. This is a common feature, but it is not a pre-requisite. As Butler-Sloss LJ highlights ‘contrast the language [of section 91(14)] with s 42 of the Supreme Court Act 1981, which requires the Attorney General to show that the litigant has habitually and without reasonable ground instituted vexations proceedings before the court can impose any restriction.’ No such requirement is present in s 91 (14) and ‘such an omission, is, no doubt, intentional and designed to give the court a wide discretion’

Re P & N (Section 91(14): Application for Permission to Apply: Appeal) [2019] EWHC 421

This case concerns an appeal relating to private law proceedings involving two boys, aged 8 and 6, who lived with the mother. Following a finding of fact hearing in January 2015, the district judge determined that the boys should have no contact with the father. A matter of months later, the father made a further application for contact. The application was dismissed a section 91(14) order was granted for a period of 3 years.

The father made several further applications for permission to apply for a section 8 order. The application was heard by HHJ Plunkett without formal notice to mother or the solicitor for the child. The judge granted the father’s application. Mother sought permission to appeal.

Williams J granted mother permission to appeal and Cobb J heard the appeal. Cobb J determine that the approach of HHJ Plunket was seriously unjust for procedural irregularity and wrong. The appeal was allowed and the matter was remitted for hearing before Keehan J (as FDLJ for the Midlands Circuit).

The relevant law and correct approach to determining permission to apply for a section 8 order where a section 91(14) order has been granted is set out at paragraphs 8-19 and copied below for ease of reference and annexed to this handout.

SZ v DG & Ors [2020] EWHC 881 (Fam)

High Court case heard by Mostyn J. Father applied for an order for contact in respect of his son, ED. Father required the leave of the court as in January 2015 when making final orders disposing of substantive proceedings, Mostyn J imposed a leave requirement pursuant to the terms of section 91(14) until ED’s 14^th birthday (June 2026).

In the substantive proceedings reported as D (A Child) [2014] EWHC 3388 (Fam) – the Court found the father ‘to be guilty of truly bestial conduct…offences of the utmost seriousness involving the gross abuse and exploitation of women and girls.’

The rationale for the section 91(14) order in 2015 is so that ‘stability of the placement with the special guardians can be guaranteed, or at least, if not guaranteed, assured so far as is possible’ and that any such application would be put on the same footing as an application to discharge the special guardianship order itself.

The father’s application for permission to seek contact was based on the return of the younger 3 children to his care, although he recognised the limitations of his case and only sought indirect contact with ED. The father’s application for permission under section 91(14) was opposed by ED’s Special Guardians.

The Court determines that the change in the father’s circumstances were relatively recent and untested and whilst there was some weight in the argument that cultural understanding is the child’s best interests, the Court refused the father’s applications on the basis “I place particular weight on the risk of disruption and on the views of the special guardians. I consider that the negative matters outlined in the Czech psychiatric/psychological report outweigh the positives. In the light of that I am not satisfied that the applicant would make a positive contribution to the well-being of ED.’

C1 and C2 (Child Arrangements) [2019] EWHC B15 (Fam); Re C3 and C4 (Child Arrangements) [2019] EWHC B14 (Fam)

The cases concerned one father and four children. C1, C3 and C4 were the father’s biological father. C2 is the sibling of C1 and lived with the father when he was in a relationship with the mother of C1 and C2. The two judgments should be read together.

In Re C1 and C2, the father seeks direct contact with both children and the mother had applied for a s 91(14) order. Keehan J ordered indirect contact only and granted a s 91(14) order.

The father had made repeated applications with respect to C3 and C4 following a finding of fact hearing at which he was found to have shaken C4 when he was aged 1. A s 91(14) order had been granted in relation to those proceedings.

The impact of the proceedings on the mother and her difficulty in giving evidence is noted. The judge conducts the XX on behalf of the father and takes a robust approach to unnecessary questions, the father submits 738 questions many of which the judge considers to be ‘abusive and no forensic value.’

The conduct of the father in the proceedings appears to have been considered to be of particular relevance. Keehan J comments ‘I have never witnessed such prolonged and appallingly bad behaviour in court before’ as the father is described as attempting to intimidate professional witnesses. The father’s conduct in court served to reinforce the evidence of the mother regarding the intimidatory coercive nature of the father’s behaviour and the Court comments that his appalling conduct in the Hight Court requires ‘one only has to consider how he would behave outside the confines of this court in the community and in his dealings with the mother and others.’

This results in the Court determining that: ‘there is a real risk of harm to the mother from the father of both physical harm, but in many ways worse still, emotional and psychological harm’ and making a section 91(14) order for a period of 2 years.

Other Useful Cases

The following cases may also be of interest:

• Re C-D (A Child) [2020] EWCA Civ 501 – Lewison LJ and Moylan LJ. Dismisses the appeal. Reminds that Re P is to be used with ‘great care’ but it is clear that that the circumstances in which a child’s welfare will justify the making of such an order are many and varied. They are not confined to cases of repeated and unreasonable applications.
• N (Children) [2019] EWCA Civ 903 – Jackson LJ & Baker LJ appeal of Hayden J. Judge proceeded in the absence of the F and made a s 91 (14) without clear notice to the father. The CoA determined: ‘the two hearings together represent an unwarranted infringement of the father’s right to a fair hearing’

• Re S (Permission to Seek Relief) [2006] EWCA 1190 1 FLR - conditions cannot be applied to section 91(14) but can advise what issues the party subject to it should address if they want to successfully apply to permission in the future

4. Findings and Recommendations of the Report

Repeat applications and using the court process as abuse

The report identifies that section 91(14) is the key provision to prevent repeated unmeritorious applications in child arrangement cases. Unfortunately, even when perpetrators of abuse are ‘barred’ from making further applications, the process of applying for leave to apply can also be used as a tool of abuse. However, it is observed that if all applications for leave to apply in cases where a section 91(14) order is in place required a response from the other party, then abusers would be provided with a legally sanctioned tool for continuing abuse, the very thing that section 91(14) is designed to prevent.

Section 91(14): an ineffective remedy?

The difficulty in identifying the effectiveness of section 91(14) is that it is rarely used. A survey of 143 magistrates by the Magistrates Association found that 90% said that such orders were rarely or never made[2]. Indeed, many of the professionals consulted for the report had limited professional experience of the use of section 91(14) orders. This raises the obvious question as to whether the provision is not been utilised as often as it could be?

Recommendations of the Report

In relation to section 91(14), the report comments as follows:

“the panel notes that the provisions of the Children Act 1989 are non-prescriptive, but the sub-section has been interpreted in case law from Re P [1999] to apply only in exceptional circumstances. In order to enable section 91(14) to protect children and adult victims more effectively from harm, the panel recommends that measures be included in the Domestic Abuse Bill to reverse the ‘exceptionality’ requirement for a section 91(14) order laid down most clearly in Re P (Section 91(14) Guidelines) [1999]. These measures should amend, replace or supplement section 91(14) in an Article 6 compliant way to ensure that the following policy objectives are clearly and explicitly provided for in statute:

• that section 91(14) orders may be made where it is in the best interests of the child to make such an order;

• that section 91(14) orders may be made where the court concludes that the bringing or prolonging of proceedings constitutes domestic abuse against the other parent;

• that it is not necessary to demonstrate repeated applications before the court could properly make such an order;

• that the court may make such an order of its own motion;

• that leave to apply for a child arrangements order following the imposition of a section 91(14) order should only be granted where the applicant provides evidence to show that circumstances since the imposition of the order have materially changed, and where the grant of leave would not create a risk of harm to the child or the other parent.”

5. Conclusion

The recommendations will likely raise some questions regarding ensuring a fair hearing for all and the impact of the recommendations on private law proceedings and whether it would likely result in a better outcome for children or not. The paramountcy principle may mean that in ensuring children’s welfare we have tended to overlook the welfare of parents. It may be that in doing so, children are harmed in more subtle ways than has previously been acknowledged by the courts.

[1] The vast majority (87%) were from individuals with personal experience of private law children proceedings– mainly mothers and their families – and 10% were from individuals with professional/practical experience in family courts. The remaining 3% (32 submissions) were from organisations. (Page 17-19)

[2] P.125 of the report