ON APPEAL FROM THE FAMILY COURT AT SUSSEX - BRIGHTON
Before :
MR JUSTICE POOLE
ZA v YB (Appeal: Extending s91(14) Order: Unfair Procedure)
ZA
Appellant
-and-
YB
Respondent
Nicholas Anderson (by Direct Access) for the Appellant
Kristina Hopper (by Direct Access) for the Respondent
Hearing date: 15 July 2025
APPROVED JUDGMENT
This judgment was delivered in public but the Judge has ordered that no information identifying or liable to identify the parties or their child shall be communicated or published and the Judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child and members of their family including the parties must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.
Mr Justice Poole :
Introduction
This is an appeal against an order of HHJ Ahmed (“the Judge”) sitting in the Family Court at Sussex – Brighton on 3 January 2025 in a private family law matter concerning the 11 year old child of the Appellant Father and Respondent Mother.
The case has a long history. The Judge gave a judgment on 20 March 2020 after a finding of fact hearing. The approved transcript shows that the parties and the child through his Guardian were all represented. The findings included that the Father had behaved in an angry and abusive way towards the child and made multiple emotionally and psychologically abusive comments to him; that he was controlling and coercive towards the mother and had emotionally and psychologically abused her; and that he had stalked and harassed her.
The Father had in fact been sentenced at Lewes Crown Court on 25 October 2019 to a term of two and a half years imprisonment and been made the subject of a ten year restraining order for stalking the mother. He unsuccessfully appealed against that sentence. He was released from prison on 11 September 2020 but remained on licence.
On 17 March 2021 at a final hearing lasting six days, the Judge made a child arrangements order which limited paternal time with the child to the sending of three cards or short letters per year, with the mother to send an update on the child’s interests, progress at school and general health three times a year.
The Judge made a s91(14) order against the father for a period of 4 years expiring on 17 March 2025 with any application reserved to the Judge to be dealt with in the first instance as box work without informing the mother.
In 2022, only three weeks after the expiry of his licence, the Father made an application for a child arrangements order, seeking permission of the Court to do so. The Judge refused permission.
On 25 June 2024, the Father made a further application for a child arrangements order seeking permission to bring the application. This was given the case number SD24P20262. The Father submitted a letter in support of his request to be given permission to bring the application, in which he said that he had changed. This was not dealt with until 3 January 2025 when the Judge gave a written “approved judgment” (“the Judgment”) which the Court sent to the Father.
The Judgment refers the Father’s application for permission by the wrong date but it is clear that the Judge was indeed dealing with the application of 25 June 2024. The Judge refused permission to the Father to bring the application for a child arrangements order. There is no appeal against that decision. However, having quoted extensively from his previous two judgments in 2020 and 2021, the Judge concluded:
“10. Section 91A now provides that the circumstances in which the court may make a section 91(14) order include where the making of an application would put the child or the mother at risk of harm. I have taken into account Practice Direction 12Q. Section 91(14) orders are a protective filter both for the mother and the child. Knowing this case and the parties in it as well as I do, having seen them give evidence, I am satisfied that the mother is at serious risk of being harmed through a further application being made. I rely upon paragraph 67 and 68 above [from the 2021 judgment] to support that view. That is not within the father’s control, but he must take the mother as he finds her. Her vulnerability in large part has been caused by him. A further application would be a disaster for the mother and in turn for the child.
11. Not only do I refuse the father permission to make an application for a section 8 order, I exercise the court’s power under section 91(14)(b) to make a further order for a period of 3 years from the date of expiry of the current order. My reason for doing so is that I am entirely satisfied that the father will immediately issue an application if he is allowed to do so. That will undoubtedly harm the mother and the child. The level of harm is likely to be high as it was before. The mere fact that the father may not have conducted himself inappropriately since the order was made is not the determining factor. I must take everything into account, in particular the vulnerability of the mother as set out in paragraphs 67 and 68. The reason for making the order for a period of 3 years is that by then the child will be 14 years old and more able to say what he wants in respect of any contact with his father. This case is not just about change in the father but includes the matter that I have just mentioned.
12. I conclude, therefore, that the application for permission to issue a section 8 application must be refused. In order to provide protection for the mother and the child from harm, I must make a further section 91(14) order for a period of 3 years from 17 March 2025 expiring on 17 March 2028.”
Children Act 1989 s91(14) provides:
“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. For further provision about orders under this subsection, see section 91A (section 91(14) orders: further provision)”.
The Appellant’s Notice was filed on 14 February 2025, more than 21 days after the judgment, and refers to a “presumed order” of 3 January 2025. Counsel’s skeleton argument in support of the appeal was dated 11 February 2025 and makes clear that no order had yet been seen. I accept that by the time the Notice was filed the Appellant had not been provided with the order which was subsequently provided and which is dated 3 January 2025. The grounds of appeal were (summarised):
The Judge was wrong to have made the order without notice to the Appellant, a litigant in person, and without giving him the opportunity to be heard on the issue.
The Judge was wrong to have concluded that an application would undoubtedly harm the mother and child in the absence of any evidence of their current circumstances and those of the Appellant.
The Judge was wrong to have made the order for the duration of three years from 17 March 2025 – that was an arbitrary decision without any evidential basis.
On 21 February 2025, Judd J granted an extension of time to bring the appeal and gave permission to appeal, directing notice to the Respondent Mother and the filing and service of a Respondent’s skeleton argument. On 24 March 2025, the Mother applied for the child to be joined as a party and the re-appointment of his previous Guardian.
At that stage, which is when I first saw the papers in the appeal, there was still no copy of an order of 3 January 2025 from the Family Court before the appeal court. Eventually one was provided but it contained only one order: “The father’s application for permission to issue a section 8 application be refused.” There was no further s91(14) order.
The appeal bundle ought to have been lodged two clear days before the appeal hearing but was only lodged on Monday 14 July 2025, the day before the hearing. Within it was an amended court order which I told the Appellant had been sent by the Family Court on Friday 11 July, headed:
“Amended under the slip rule 11/07/25”
There was now added a second order:
“The order made under section 91(14) on 17 March 2021 expiring on 17 March 2025 be extended until 4pm on 17 March 2028.”
I make the following observations about the order under appeal:
The Court was entitled to amend the order under the slip rule. FPR r29.16(1) allows the court “at any time” to correct “an accidental slip or omission in a judgment or order.” I have considered the President’s judgment in Re X and Y [2025] EWCA Civ 2 where he held at paragraph 66:
“This power, and its equivalent in CPR 40.12, is most often used to correct minor blemishes or omissions in orders. However, it can be deployed wherever there has genuinely been an accidental error or omission, but not as a way for the court to have second or additional thoughts: Santos-Albert v Ochi [2018] EWHC 1277 (Ch), [2018] WLR (D) 315, [2018] 4 WLR 88 at §27.”
Given that the Judgment clearly set out the order that the Judge intended to make, the failure to include the second order in the original version of the order of 3 January 2025 was clearly an accidental omission which the Judge was entitled to correct under the slip rule. The Judge was not having second or additional thoughts. Mr Anderson for the Appellant did not argue otherwise.
I am satisfied that for the purposes of this appeal the Judge made the further s91(14) order, “on disposing of an application for an order” under the Children Act 1989. By refusing permission to bring the application for a s8 order, the Judge was disposing of an application for an order, Neither party sought to argue otherwise when I raised that issue for consideration at the appeal hearing. Mr Anderson for the Appellant conceded that the Judge was entitled in principle to make a s91(14) order subject to the matters which form the grounds of appeal.
The Judge made the order of a further s91(14) order of his own motion. He was entitled to do so as provided for by Children Act 1989 s91A(5)(b).
FPR 4.3(4) and (5) provide:
“(4) The court may make an order of its own initiative without hearing the parties or giving them an opportunity to make representations.
(5) Where the court has made an order under paragraph (4) –
(a) a party affected by the order may apply to have it set aside, varied or stayed; and
(b) the order must contain a statement of the right to make such an application.
(6) An application under paragraph (5)(a) must be made –
(a) within such period as may be specified by the court; or
(b) if the court does not specify a period, within 7 days beginning with the date on which the order was served on the party making the application.”
The Judge did make the further s91(14) order of the Court’s own initiative and he did so without hearing the parties or giving them an opportunity to make representations. The Appellant Father had made representations about being given permission to bring an application for a s8 order, but not about a further s91(14) being made. He had not known that that was in the contemplation of the Court. The order does not contain any statement of the right of the Appellant to make an application to set aside, vary or stay the order made without notice to him.
The amended order – amended under the slip rule on 11 July 2025 – is to be treated as an order made on 3 January 2025. However, in reality the Appellant has not had 7 days in which to apply to set aside, vary or stay the order made without notice and of the Court’s own initiative. However, after discussions at the hearing, I was pressed by the Appellant to proceed with the appeal rather than to consider giving directions to extend time to make an application to set aside or vary the further s91(14) order. Ms Hopper for the Respondent complained about the late preparation of the Appeal Bundle but I was satisfied that she was able to make submissions on at least ground 1 of the grounds of appeal without the need for an adjournment.
FPR 30.12(3) provides that an appeal may be allowed where either the decision was wrong or it was unjust for serious procedural or other irregularity. The court may conclude a decision is wrong because of an error of law, because a conclusion was reached on the facts which was not open to the judge on the evidence, because the judge clearly failed to give due weight to some significant matter or clearly gave undue weight to some other matter, or because the judge exercised a discretion which "exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong": G v G (Minors: Custody Appeal) [1985] FLR 894.
Ground 1 of the Appeal is that the decision was unjust for serious procedural irregularity. The fact that the Judge made a highly significant order barring the Father from making applications regarding his child for a further three years when he had no knowledge that the order was being considered by the Court and had no opportunity to make representations, offended natural justice. In support of his submissions Mr Anderson referred the Court to the judgment of Tomlinson LJ in Re T (A Child) (Suspension of Contact) (s91(14) Ch A 1989) [2016] 1 FLR 916, CA where at paragraphs 50 and 51 he said:
“50. Orders under this subsection are very much the exception not the rule, and only where the welfare of the child requires it, having regard to the guidance given by this Court in Re P (Section 91(14) Guidelines)(Residence and Religious heritage) [1999] 2 FLR 573. Given the significant implications of this statutory intrusion into a party's ordinary ability to access justice, it is imperative that the Court is satisfied that the parties affected:
i) Are fully aware that the Court is seised of an application, and is considering making such an order;
ii) Understand the meaning and effect of such an order;
iii) Have full knowledge of the evidential basis on which such an order is sought;
iv) Have had a proper opportunity to make representations in relation to the making of such an order; this may of course mean adjourning the application for it to be made inwriting and on notice.
51. These fundamental requirements obtain whether the parties are legally represented or not. It is, we suggest, even more critical that these requirements are observed when the party affected is unrepresented. Observations to this effect were made by Wall LJ in Re C (Litigant in Person: Section 91(14) Order) [2009] EWCA Civ 674 [2009] 2 FLR 1461, who added:
"Where the parties are both or all in person, there is a powerful obligation on any court minded to make a s 91(14) order to explain to them the course the court is minded to take. This will involve the court telling the parties in ordinary language what a s 91(14) order is; and what effect it has, together with the duration of the order which the court has in mind to impose. Above all, unrepresented parties must be given the opportunity to make any submissions they wish about the making of such an order, and if there is a substantive objection on which a litigant wishes to seek legal advice the court should either normally not make an order; alternatively it can make an order and give the recipient permission to apply to set it aside within a specified time". (emphasis by underlining added).”
In Re C (Prohibition on Further Applications) [2002] 1 FLR 1136, Bulter-Sloss P held that:
“I think it wrong in principle. Except in exceptional cases, to place a litigant in person in the position, at short notice, of an order that bars him from dealing with any aspect of the case relating to his children, particularly relating to contact.”
Here, there was not even short notice to the Appellant, a litigant in person, there was no notice at all. The Appellant has an ignominious history of harassment and abuse in relation to the Respondent and their child, but he was entitled to natural justice. Instead, a very significant order was made barring him for making applications concerning his child without permission for a further three years without him knowing that such an order was being considered and so with no opportunity for him to make representations. Having made the order the Court did not inform the Appellant of his right to apply to set aside, vary or stay the order. That was a further procedural irregularity. It would have been a simple matter to have given the Appellant notice that the Court was, of its own initiative, considering making a further s91(14) order and to allow him a short time within which to make representations as to whether the order should be made and, if it were made, its duration.
I am satisfied that these were procedural irregularities that rendered the order made on 3 January 2025 unjust such that it should be set aside. In the circumstances there is no need for me to consider grounds 2 and 3.
I shall remit the case for consideration by a Circuit Judge at the Family Court at Sussex – Brighton, other than HHJ Ahmed. Ms Justice Henke, Family Presiding Judge with responsibility for the Family Court at Sussex – Brighton shall allocate the case. I have wrestled with the proper procedure for remitting this case since there is no appeal against the refusal of permission to bring a s8 application. The fact that HHJ Ahmed made the order, and that it was not stayed pending the appeal, means that the end date for the initial s91(14) order has passed. The Respondent has not applied for a further s91(14) order but she did not need to whilst HHJ Ahmed’s further order remained effective, she did not want to make an application in order to do so, and the wording of s91(14) suggests that a free-standing application for such an order cannot be made. I am concerned to ensure that remitting the case for consideration of a further s91(14) order is effective and that pending that determination there is appropriate protection of the Respondent and the child. The procedural issues are complex but I am satisfied that:
As already noted, I proceed in this appeal on the basis that at the time HHJ Ahmed made his further s91(14) order he was “disposing of an application for an order under [the Children Act 1989].” He had the power to make a s91(14) order. His error was in relation to the procedure he adopted for making his decision in relation to that further order.
On the case being remitted and allocated, a Circuit Judge (“new Judge”) will have the power to make a s91(14) order of the Court’s own initiative. For the avoidance of doubt I shall order that the new Judge shall be deemed to be making a further s91(14) order (if one is made at all) on disposing of an application for an order under the Act. The time lapse between the refusal to permit a s8 order application and the remitted consideration of a further s91(14) Order is due to the appellate process and the Court’s own failure to produce an accurate order soon after the judgment given on 3 January 2025. No injustice will be caused to either party by regarding the new Judge as being entitled, as was HHJ Ahmed, to make a s91(14) order of the Court’s own motion, provided that there is procedural fairness. It may be that in another case, the Court will take a different view as to whether a s91(14) order can be made in such circumstances, but no objection was taken by either party in this appeal to the approach I have decided to take. The appeal process itself should not deprive the Court of the power that it could have exercised if it had acted with procedural fairness.
By FPR r30(11)(1) , “the appeal court has all the powers of the lower court”. Accordingly, I have the power to make an s91(14) order pending the remitted case being considered in the Family Court. I gave the parties the opportunity to make representations about such an order and there was no opposition to my doing so for a limited period. This was not a suitable case for me to decide whether to make a further s91(14) order in the longer term. Given information that I now have through the appellate process, including through submissions, I am satisfied that the child and the Respondent Mother would be put at risk of harm were any application for an order under the Children Act to be made by the Appellant Father pending resolution of the remitted matter. I shall make a s91(14) order until 30 November 2025 but make it clear that this can be discharged by the new Judge who is not at all bound by the s91(14) order I have made which is for a specific and time limited purpose.
I shall direct that the child’s former Guardian, who is a Cafcass officer, shall be invited to advise the Court of her position on whether the child should be joined as a party with the Guardian being re-appointed. To do so would be to involve the child in proceedings – the very thing that s91(14) orders are designed to avoid. It may not be necessary to join the child. However, the impact on the child of further litigation given the child’s current circumstances is a matter of some importance to the Court making the decision about a further s91(14) order. Ordinarily the Court would be considering making a s91(14) order armed with evidence from proceedings that were being concluded. That is not the case here. The Court might decide that it can rely on evidence from other sources without the need to join the child. That decision should be made by the new Judge.
I make it clear to both parties that since the new Judge will be considering the matter afresh, aided by representations and evidence from the parties, they might choose to:
Make no further s91(14) order;
Make one to have effect until 17 March 2028, as HHJ Ahmed ordered; or
Make one for a shorter or longer duration. If longer, then this successful appeal will have been a Pyrrhic victory for the Appellant Father.