C (A Child) (Section 91(14) Children Act 1989 order), Re

The child at the centre of this case is C, who was born in February 2020 and is, accordingly, five years and eight months old. C’s parents are F and M. Both share parental responsibility for C by virtue of the father having been registered on her birth certificate.

F is represented today by Mr Justin Gray of counsel, instructed by Ms Sara Stockdale of Yarwood Holmes Law. M is represented by Ms Karen Lennon of counsel, instructed by Mr Stuart Parker of Pepperells.

This is the second set of section 8 Children Act 1989 proceedings. This is the father’s application to vary a final order, made by consent at the conclusion of the final hearing before me on 10 and 11 April 2025.

To set the context for this application there are also Schedule 1 to the Children Act 1989 proceedings listed before me this afternoon. There is an application by the father to vary a final order of District Judge Falzon and a cross-application by the mother to enforce that order. Without going into those proceedings in any detail, it suffices to say that significant sums were ordered to be paid by the father that remain outstanding.

The first set of section 8 Children Act 1989 proceedings were resolved by way of a Consent Order. On that occasion Mr Timothy Spain appeared on behalf of the father, the mother had Ms Lennon representing her. Both counsel did not think that putting their clients in the witness box and having a contested hearing on that occasion would assist in making decisions that were in C’s best interests. I agreed, and no evidence was therefore heard at that hearing.

I was extremely grateful to the counsel who worked extremely hard for two days to produce a very detailed Consent Order. There was much toing and froing and my recollection is that the vast majority of those two days were spent by counsel with their clients outside of court agreeing what is a very detailed order, and which sets out a clear framework for how matters were hoped to progress. I also made a Family Assistance Order, directed to Cafcass, for 12 months at the conclusion of the proceedings.

Matters did not go as well as hoped. On 2 June 2025 the Cafcass officer wrote a letter to the court setting out her concerns and the material extract from this letter is as follows:

“Throughout proceedings in this matter I have been copied in to correspondence between solicitors and have been concerned regarding the emotive language between them to one another. In May 2025 I was copied into further emails between solicitors and I am concerned that their tone towards each other is not helping the parents focus on [C] or how arrangements can be progressed.”

Further on in the letter the Cafcass officer expresses her concern that the level of continuing conflict is beyond the remit of the Family Assistance Order. That is an unusual letter for the Court to receive. It is the only letter I have received of that nature whilst I have been sitting as a judge.

On 13 July 2025 the father made his application to vary the order and on 22 July 2025 I made directions administratively for this hearing. I directed statements sequentially from each parent. I did not order further safeguarding, the matter having concluded so recently and with Cafcass, in any event, having engagement with the family by way of the Family Assistance Order.

I did not consider that getting a further report from Cafcass would assist me, so I did not order one. I listed the matter straight for a final hearing, and directed that the inter partes correspondence should be included in the bundle, in addition to the normal Practice Direction 27A documents, so I could review it for myself and decide whether I agreed with Cafcass’s assessment of it.

The matter proceeded today by way of submissions. No evidence was heard. The Cafcass officer attended, as I had invited them to do so, given that the Family Assistance Order was still in place. I did not hear from the Cafcass officer as I did not consider that would be a fair thing to do without having asked for a report.

I had asked each parent’s statements to address three matters. Firstly, what contact had taken place since the order had been made in April 2025, secondly, any proposals for changing the order and why those would be in C’s best interests, and thirdly, their views on whether I should make an order pursuant to Section 91(14) of the Children Act 1989 in these circumstances, and if so, in what terms.

A bundle was prepared for this hearing and I pre-read that. I was, of course, already familiar with the case, having dealt with the matter in April.

Turning to the law which applies to this application. It is largely set out in section 1 of the Children Act 1989. C’s welfare is my paramount consideration, any delay in determining these proceedings is likely to prejudice C’s welfare, and in coming to my decision I am assisted by the Welfare Checklist.

The law in relation to section 91(14) is as follows:

“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.”

Section 91A(2) of the Children Act 1989 was inserted by the Domestic Abuse Act 2021, with effect from 19 May 2022. Insofar as material, that provides as follows:

“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”),

at risk of harm.”

The starting point for the case law relating to section 91(14) orders is the well-known decision of Butler-Sloss LJ in Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573, and that set out a number of guidelines which the court should have regard to when making Section 91(14) Orders. Those guidelines are helpfully set out in the Family Court Practice 2025 and I have had regard to them.

There has also been more recent case law analysing the making of section 91(14) orders. The starting point for that case law is a decision made shortly before the amendments to section 91(14) made by the Domestic Abuse Act 2021 had come into force. It was a judgment of King LJ in a case Re A (A Child) (supervised contact) (s91(14) Children Act 1989 orders) [2021] EWCA Civ 1749. That judgment set out that there was a new landscape, a more permissive landscape, and that section 91(14) orders could be made in wider circumstances. What she noted was that the amendments to the legislation were effectively giving statutory force to the sixth guideline in Re P by making orders available in circumstances where further applications would put the parent or the child at risk of physical or emotional harm.

The next case was F v M [2023] EWFC 5, a decision of Hayden J. That made clear that the filter of a section 91(14) order applies and exists to protect the child and the parent with whom the child lives. It made clear that an order is not a punitive measure towards a recalcitrant parent, neither is it a bar on access to justice. Where a Court identifies an issue that requires to be resolved, the case will proceed, but where there is no such issue the making of a section 91(14) order can protect the child and the primary carer from the stress and uncertainty of misconceived or vexatious applications.

At paragraph 41 of her judgment in Re A (A Child) (supervised contact) (s91(14) Children Act 1989 orders) King J indicates that where parents are engaging with what:

“amounts to [what is known as] ‘lawfare’, that is to say the use of the court proceedings as a weapon of conflict, the court may feel significantly less reluctance than has been the case hitherto, before stepping in to provide by the making of an order under s91(14), protection for a parent from what is in effect, a form of coercive control on their former partner’s part.”

The final case to which I have had reference is the decision of Knowles J, who is of course the lead on domestic abuse matters, in the case of A Local Authority v F & Ors [2022] EWFC 127. She clarified:

“The risk that harm may arise to a child under the age of 18 unless the making of applications is restrained is not qualified by words such as ‘serious’ or ‘significant’ and neither is the degree of harm that a child may experience.”

In that sense the statutory framework is perhaps slightly more permissive than previously when looking at guideline 7 from the Re P case, however Knowles J made clear that it was still appropriate to take into account the proportionality of making an order under Section 91(14).

I accept that such an order is rare, and it is a draconian order and it is only appropriate to do so when it is proportionate to the risks.

Having dealt with the law I now turn to my analysis. I read both parents’ statements with an increasing sense of despair for C. That increased when I read the correspondence that had passed between the solicitors. Both parents clearly put the blame for matters not working on the other. The statements are long, I would suggest prolix, and do not really address matters as to how things could improve for C.

Miss Lennon said it is the mother’s concern that C’s voice is lost. I think, to some extent, both parents have lost sight of what is really important in this case, namely C. They are engaged in litigation on numerous fronts and this is not helping the development of C’s relationship with her father. The sooner all of this litigation comes to an end the better.

In my judgment both parents are not following the spirit of the April order. To make that order work required trust in each other, a willingness to work together, putting the past behind to some extent and putting C first. That does not appear to me to have happened.

It was clear that both parties contemplated the possibility that the progression of contact between C and her father could be either speeded up or slowed down from that set out in the order. The recital at paragraph 11 of the order makes that clear.

Having considered each party’s statements I have come to the view that C is not yet ready for overnight staying contact. The issue of co-sleeping still is problematic. I observe that there might have been more progress if the mother and C had been able to purchase a property and move into that if the implementation of the Schedule 1 final order had been more smooth. Nor does it appear to me that the father has made any real preparations for overnight contact, for example by having a properly furnished and decorated room available for C.

What then should I do with this application? The mother essentially says keep the April order in place. The father proposes changes to commence overnight staying contact in a very short timeframe. A draft order to that effect was circulated by Mr Gray, along with his position statement.

I have considered carefully whether a simplified order would suit this case. That has a superficial attraction in that it would be easier for the parties to follow. However, the more I have reflected on this case, and what both parties have said and what their statements told me, I have come to the conclusion that effectively the April 2025 order was as good as it was going to ever get for C.

The key item from the welfare checklist that has driven my decision is the effect of any change on C by moving to overnight contact immediately. I do not think that would be in her best interests at this point. It needs more time, but it does not need an indefinite amount of time.

I have come to the conclusion that the April 2025 order should remain place save that I delete the provision at paragraph 17(h) which provided for overnight staying contact in the October 2025 half-term holiday. Accordingly, staying contact will commence at Christmas this year. So, apart from the deletion of paragraph 17(h) the order remains in place unamended.

The parties need to comply with that order and get on with that order and make it work. I again observe that will undoubtedly be easier if the hygiene issues, as I might describe them, around finances are resolved sooner rather than later.

I have also reflected carefully on whether to make a section 91(14) order in this case. I have come to the clear view that C is at danger of harm, and I stress emotional not physical harm, from continued litigation between her parents. I observe that harm is not qualified by the words significant or serious. In my judgment C needs a break from litigation. The order as amended needs to settle down and both parents need to make it work. I have concluded that this is best addressed by making a 12 month section 91(14) order against both parents in relation to any applications as to who C lives with or what time she spends with the other parent. So that order will expire on 7 October 2026.

If there are to be any applications, I have reserved them to myself if I am available to deal with. I make clear that the section 91(14) order is not a bar on any applications. It is simply putting a filter of permission, and it is also not a bar on any enforcement applications that may be made.

That then is my judgment and the reasons for it.