Section 91(14) Orders

A section 91(14) order is named after section 91 sub-section 14 of the Children Act 1989. It’s a way of limiting court applications when court itself is being used to harm someone. 

They are a protective filter made by the court, in the interests of children. 

How it works 

The order is made against someone – usually one or both parents.  

It means that the person named in the order needs a judge’s permission to apply to court again. 

Sometimes they are called ‘barring orders’ but this is not a good name. It doesn’t stop that person from applying to court.  It means that if they apply a judge has to consider their application first and decide whether or not they should get permission to go ahead with it. This is known as ‘getting leave’. 

The order can mean they can’t make any application or it could be limited to certain types of application such as contact applications. 

Practice Direction 12Q covers these orders. 

When s91(14) orders may be made 

The orders can be made because you or your ex has applied for one, or because the judge comes up with the idea. 

The application may be made in writing using Form C2, or orally during a hearing. It’s not a good idea to ambush the other party. This might just result in the judge delaying a decision about it. Tell them you intend to apply, and serve them with a copy of the application form C2. 

Practice Direction 12Q says that the situations in which the order would be appropriate could include  

• Where just bringing the case would put the child or someone else at risk of harm such as psychological or emotional harm 

• Where one party has made repeated unreasonable applications in the past 

• Where the parties need some break from litigation 

• Where a period of time is needed for certain actions to be taken to protect a child or another person (as with Mo’s example above) 

• Where someone’s behaviour means that the order is in the child’s best interests. This includes harassing or distressing behaviour outside proceedings such as on social media or email or through third parties.   

• Where having an order having an order will help reduce the distress to the primary carer so they can better care for the child 

• Where an application would be part of a pattern of coercive or controlling behaviour or domestic abuse  

It is therefore often made where there is a history of: 

• Making repeated court applications without a good reason 

• Domestic abuse or harassment 

• Using the threat of court hearings as a form of coercive control against the other parent (known as ‘lawfare’ – warfare via the law) 

• Lots of years of litigation that is harming the child and primary carer 

Sometimes the order is made against the abusive parent only.  

Sometimes it’s made against both parents, if the court thinks that you both need a break from each other and this would be best for the child. 

Does PR affect this? 

No. A parent without PR can still make an application to court for a child arrangements order, prohibited steps order, or specific issues order. 

If someone is abusive, then removing or restricting their PR may not be enough – they can still apply to court.  Therefore it is sensible to ask for a s91(14) order too. 

Getting leave to make an application if there is a s91(14) order against you 

• Use form C100 and you tick the box saying that you need leave  

• Explain what your application is for (such as to spend time with a child) 

• Explain why you pass the test we’ve set out below, such as whether there has been a material change in circumstances since the s91(14) order was made  

The judge might decide whether to give you leave or not by reading your application, without a hearing. However, if he or she does not hold a hearing and they refuse you leave, you can ask for an oral hearing. You have to do this within 7 days of the court telling you its decision.  

If there is an oral hearing, the court decides whether or not to tell the other party. 

The test for permission 

To decide whether to give the person permission to go ahead with bringing their application, the judge must consider: 

• Does the court need to be involved?   

  • The court won’t give permission unless there is an arguable case. This means a case that is not hopeless, frivolous, or vexatious (designed only to cause trouble) or which is about such a minor thing that the court doesn’t justify court time. 

  • Giving permission does not meant the application will ultimately succeed or that the judge has already decided. It just means that that the case is arguable and worth considering.  

• Has there been a material change in circumstances since the s91(14) order was made.   

  • Material means relevant.  

  • A material change in circumstances is not essential but the court has to consider this and may well be influenced by it 

Another way of saying this would be ‘Has something changed that justifies the court being involved?’ 

Note: This is an explanation of what the court decided in a case called Re S (CA 1989) (91(14)) [2023] EWHC 1161 (Fam). We have tried to make it understandable and referred to the Civil Procedure White Book commentary to help us with the definition of ‘arguable’. If you need to argue about this test in court you should look at the case itself and ask the court to look at it. This is because plain English explanations can change the legal meaning slightly. 

Example

Mo had made an application for a child arrangements order. The court heard evidence and found that Mo had been abusive to their ex, Jude, and that contact with their son would cause the son and Jude further harm. The court decides that Mo should write letters to their son but should not see him until Mo has undertaken a six month domestic abuse perpetrators’ programme to understand the effect of Mo’s abuse on Jude and their son, and used the time to build up a relationship by letter.  The judge makes a s91(14) order against Mo, so Mo has to get a judge’s permission before any further application for more contact will be heard. 

However, three months later, before the course is finished, Mo applies to court again.  The judge considers what changes have been made.  Mo says that he has made the application because Jude has signed their son up to football and Mo believes that this time should be spent with him instead.   

The judge does not grant permission because this is not a material change in circumstances and he doesn’t have an arguable case. Mo has not completed the course. He hasn’t demonstrated any insight into his behaviour, when the court only recently decided it wasn’t in his son’s best interests to see him.  

Completing the course, on the other hand, might be a material change in circumstances, because it might provide evidence that Mo has taken steps to address his behaviour. 

Special rules apply where a child is in local authority care. 

How long they last for 

The order will say how long it lasts. This might be a couple of years or it could be the whole period until the child turns 18. It all depends on the situation.  

The length has to be proportionate to the reason it’s being made. The judge has to explain why they have made it for the period they have.  

Will the other person know about the application for leave? 

The other person - the proposed respondent    may or may not be told about the application for permission. In the past, courts have given them a choice to be told or not be told. Some parents want to know and some don’t want it hanging over them.  

This ought to be covered in the s91(14) order. 

This is just about knowing about the application for permission to bring the case. If they get permission the other person will know about and be part of the case.