A and T (Children) (Appeal: Duration of section 91(14) order), Re

In this judgment I shall refer to the appellant father as ‘F’ and to the respondent mother as ‘M’. The appeal concerns the parties’ two children, A and T. They are now aged nearly 15 and 10 ½. I make a reporting restrictions order to preserve the anonymity of the children.

F represented himself at the hearing of this appeal. He did so succinctly and courteously. M has been represented by Ms Gina Allwood. I extend my gratitude to her for agreeing to act pro bono and for her exceptionally helpful written and oral submissions.

F appeals against the decision of HHJ Wicks on 4 February 2025 to make an order pursuant to section 91(14) of the Children Act 1989 (‘the 1989 Act’). The order prevents both parties from making applications about the children under section 8 of the 1989 Act without the leave of the court for a period of 3 years. At the time of the decision A was aged just 14 and T was nearly 10. By the time the restriction ceases A will have attained the age of 17 and T will be nearly 13.

On 30 July 2025 I granted F permission to appeal against the duration of the section 91(14) restriction, but refused him permission to challenge the making of the order and other aspects of the decision below.

The proceedings have a convoluted history which I propose to set out in some detail.

The children were born during the course of a relationship between the parties which was relatively short-lived. The parties separated in 2016 when the children were aged 5 and 1. There was a period when the children spent time with F on alternate weekends but this arrangement came to an end in 2017. Thereafter, F lost touch with M after she moved without providing him with details of her new address.

In December 2020, F made an application for a child arrangements order after obtaining contact details for M.

F’s application made slow progress through the courts. It was listed for a fact-finding hearing before the lay justices on 7 April 2022 (16 months after the date of issue). M had made allegations of abuse about twelve incidents said to have occurred between 2012 and 2015, but somewhat arbitrarily the justices restricted their consideration to just four events in 2015 and made findings against F in relation to three of these. The process by which they did so was unfair and accordingly their findings were set aside by HHJ Handley on 2 August 2022. The litigation had been ongoing for 20 months and no progress had been made.

The proceedings meandered for a further 17 months before a final order was made by consent on 12 January 2024. They were allocated to HHJ Handley until his retirement in the Spring of 2023. Since 6 June 2023 all hearings have been dealt with by HHJ Wicks.

An unfortunate aspect of the proceedings has been an inconsistency in the approach taken to the question of fact-finding. From an early stage, M alleged that she has suffered serious domestic abuse from F, an allegation which he has consistently denied. Conversely, he has alleged that M has been responsible for alienating the children against him. Over the course of three years of litigation no clear factual determinations were made in respect of these cross-allegations; different decisions were made by different tribunals as to the need to do so. In June 2023, HHJ Wicks, correctly in my view, determined that fact-finding was necessary, reversing a decision made by his predecessor. On 6 December 2023, HHJ Wicks, no doubt influenced by the length of time the proceedings had taken, decided that rather than hold a separate fact-finding hearing ‘factual disputes relevant to contact can be resolved as part of the welfare considerations at a final hearing’. Again, I consider that this decision was correct at the time it was made as it had the objective of avoiding a further lengthy delay. In the event, however, no fact-finding at all took place as the parties came to an agreement which appeared to obviate the need for it.

The absence of factual determinations by the court has made it more difficult for the professionals to provide clear guidance as to the way forward for the children. For example, in making his recommendations about contact in a report prepared in June 2023 pursuant to section 37 of the 1989 Act, a social worker from the Northamptonshire Children’s Trust (‘the local authority’) opined that there was a need to be sensitive to the fact that M was ‘still suffering trauma’ from her relationship with F. The guardian at one stage observed that a number of professionals had formed views adverse to F, having accepted a narrative provided by M. The order of 6 December 2023 contains a recital making clear that without a determination of factual disputes, professionals working with the family should maintain ‘an open mind’ and not assume that one or other of the parents is or is not telling the truth. I suspect that this is somewhat more difficult for professionals to accomplish than may have been envisaged when the recital was crafted.

Another unhappy feature of the litigation has been the involvement of multiple professionals. In September 2022 a children’s guardian was appointed to represent their interests; the first allocated guardian retired before the conclusion of the case and a second took over her role. Concerns raised by the first guardian about M’s influence and the potential for the children to be suffering significant emotional harm resulted in the court directing two section 37 reports from the local authority as to the need for it to issue care proceedings; M at one stage objected to the guardian and her solicitor meeting the children unless accompanied by a third party and applied to have the guardian removed from the case. As well as preparing reports for the court, the local authority opened its own investigation and the children were made subject to Child Protection Plans. Changes in personnel resulted in the children meeting different social workers and reports being prepared by different people.

With the permission of the court, the parties instructed Dr Hardiman, a chartered counselling psychologist, to prepare a report as a single joint expert. In his report dated 23 February 2023, he raised a concern that the children faced risks in M’s care as a consequence of their exposure to her negative views about F. He made a number of recommendations, most notably that the parties, and ideally also the children, should engage in specialised therapy aimed at improving the adult relationship and ultimately restoring the children’s relationship with F.

The local authority initially appeared to embrace Dr Hardiman’s recommendations. In its June 2023 report it described the proposed therapy as ‘crucial’ to the success of contact. The necessary funding, however, was not forthcoming.

On 10 January 2024 a final analysis was prepared by the second children’s guardian, Stella Alabi. F had been attending the children's football matches since May 2023, but reported to the guardian that there was ‘generally no positive interaction’; T would frequently tell him to ‘go away’ and A avoided interactions altogether. Neither child was able to say anything positive to the guardian about F; each expressed a wish not to see him.

The guardian’s assessment was that the children had suffered psychological and emotional harm as a result of M’s inability effectively to promote their relationship with F. Professionals from the local authority had contributed to the harm by accepting at face value assertions made by M as to the risks F presented, risks she had come to accept were not present. The guardian also considered that the children were continuing to suffer emotional harm, distress and anxiety as a result of the length of the proceedings, which by then were entering their fourth year. During the course of the proceedings, T had come to learn that F was his biological father whereas previously he had assumed this to be his step-father. In the guardian’s view, this discovery was also likely to have caused him emotional and psychological harm and to have had an impact on his sense of identity.

The guardian expressed great concern about the negative views which the children continued to express about F and the fact that the previously envisaged therapy had not taken place. She conducted a careful analysis of various different options including the potential for an immediate change of residence for the children. Having evaluated the different options, she made a recommendation for a Family Assistance Order and said the following:

Significantly for present purposes, she went on to say:

The final hearing was listed before HHJ Wicks on 11 and 12 January 2024. Before the hearing commenced the parties came to an agreement which formed the basis of the ensuing consent order dated 12 January 2024. This provided for the children to live with M and spend time with F. The arrangement was to be supported by a Family Assistance Order. The order also recorded the parties’ agreement for the children’s contact with their paternal grandfather and aunt to continue.

Recital 3 to the order of 12 January 2024 recorded the parties’ ‘shared aim’ of achieving unsupervised and overnight staying contact between the children and F by the date of expiry of the family assistance order on 12 October 2024. The order contained a schedule setting out the parents’ shared commitment to progressing contact. That schedule set out what were recorded as being the ‘key aims’ of the Family Assistance Order. These included:

The schedule also provided that contact was to take place primarily with F attending the children’s football training and matches (or other similar activities). M was to attend at least once a month to enable the children to see the parents interacting positively.

Recital 5 to the order, echoing the recommendations of the guardian, provided as follows

Similarly, paragraph 15 of the schedule to the order set out the parties’ expectations as to the minimum progress to contact that was expected and recorded that ‘if such progression does not take place… there will need to be consideration as to whether any further steps are required to address this’.

The children’s contact with F did not progress as had been envisaged and so F made a further application to court. This was initially listed before HHJ Wicks on 27 June 2024. Cafcass were invited to comment in advance of the hearing. In a short report dated 18 June 2024, Cafcass said the following:

Cafcass set out a series of recommendations as to how the matter should move forward. The local authority needed to provide a comprehensive update, following which the court would need to consider whether or not the children should be moved to F’s care or prepared for such a move or whether more limited arrangements should be put in place for the children to spend time with F. The court would also need to consider whether the threshold was met for care proceedings. In a departure from the guardian’s previous recommendation, however, the author of the Cafcass letter recommended that the children should not be joined as parties to the renewed application.

As a consequence of Cafcass’s recommendation and the court’s endorsement of it, the children did not have the benefit of a guardian for this further round of litigation. A further report was prepared by a new social worker from the local authority, meaning that the children were introduced to a yet further professional. This report cross-referred to a previous report that had been prepared by the former social worker. It identified a lack of progress in contact, that the children felt they were not being listened to in their expressed opposition to contact and that F had not been receptive to advice about changing his approach. The author of the report identified ‘concerns’ about F’s behaviour towards M and was dismissive about allegations made by him against her, describing these as ‘unfounded’. F’s allegation that the boys had been influenced by M was discounted on the basis that ‘evidence of this has not been seen’ (a comment that seems surprising given the history of the case and previous reports which had been prepared including that of Dr Hardiman). It was also suggested that F had ‘tried to intimidate’ the previous social worker, although no further particulars of this allegation were given.

The parents had been provided by the local authority with funding for introductory meetings with Relate, but the type of therapy previously described as ‘crucial’ for the children had not been made available. Relate did not consider that they could provide the type of ‘service’ that was needed. The new social worker no longer appeared to recognise an imperative for therapy to take place, merely stating that it ‘may be appropriate’. Reading this report has left me with the impression that the local authority did not consider there was much they could usefully do for the children; there was no longer a realistic prospect that it would make available the type of therapy previously identified as necessary in the interests of the children.

The proceedings were listed for hearing on 4 February 2025. HHJ Wicks heard evidence from the social worker who had authored the most recent local authority report and from a family support worker who had been involved in arranging some of the contact sessions.

The restrictions on the provision of legal aid in private law proceedings resulted in both parties acting in person at the hearing, as they had done throughout the proceedings. This will have made the task facing the judge more difficult. In a case where allegations of domestic abuse had been raised, the provisions of the Domestic Abuse Act 2021 (‘the 2021 Act’) prevented the parents from cross-examining each other. The court was not in a position to undertake a meaningful fact-finding hearing without adjourning the case to investigate the potential for Qualified Legal Representatives to become involved. This would have resulted in yet further delay in a case which by then had been going on for more than four years. I would observe more generally that the absence of legal representation for the parents is likely to have aggravated the problems which have beset the litigation. The main casualties have been the children.

After hearing the professional evidence and submissions from the parties, the judge came to the clear conclusion that making a further order for contact in the face of the children’s opposition was not in their interests. He also determined that F’s proposed solution to the difficulties – changing the children’s residence – was unrealistic. Accordingly, he dismissed F’s applications on the basis of recitals recording M’s agreement to F continuing to attend the children’s football matches. F sought to appeal these decisions but, as I recorded above, I refused him permission to do so on 30 July 2025. In my view, HHJ Wicks was fully entitled to come to the view that the strategy thus far adopted to promote contact was not working and that a different, more subtle, approach was called for. I also share the judge’s view that the prospect of changing the children’s residence at this juncture is not realistic. A is nearly 15 and would refuse to comply with an order to that effect. T has no memory of ever having lived with F and has only developed a limited relationship with him. It is difficult to conceive that compelling him to live with F in those circumstances could be in his interests, especially if this would entail being separated from his older brother.

In addition to dismissing F’s application, the judge decided that the case was one which justified the making of a section 91(14) order. I set out his reasons more fully below, but, in essence, he agreed with the evidence of the social worker that the family deserved a break from litigation. Although in my view, for the reasons set out below, this was not an obvious case in which to make such an order, I do consider that the judge was entitled to do so in the exercise of his discretion. He had extensive knowledge of the case, having previously dealt with a number of hearings. I confined the grant of permission to appeal to a challenge to the duration of the order as I did not consider that F had a real prospect of undermining the making of the order itself. As F very fairly accepted at the hearing of the appeal, the litigation has been harmful to the children.

Section 91(14) of the 1989 Act provides as follows:

In 2022, the 1989 Act was amended by the 2021 Act with the insertion of a new section 91A entitled ‘Section 91(14) orders: further provisions’. So far as material, this provides as follows:

The principles governing the making of section 91(14) orders were set out by Butler-Sloss LJ in Re P (Section 91(14) Guidelines) [1999] 2 FLR 573 as follows:

Re P was decided more than two decades before the enactment of the 2021 Act, but the ten principles identified by Butler-Sloss LJ have been substantially followed by the courts both before and since that Act came into force.

In Re A (A Child) (Supervised Contact: s.91(14) Orders) [2021] EWCA Civ 1749, King LJ held that although Re P guidelines ‘have substantially withstood the test of time’, it was instructive to place them in a modern context. She highlighted (at paras 34 to 36) that:

King LJ also emphasised that the power to impose a section 91(14) restriction is not confined to cases of repeated applications, but may be justified after a single set of proceedings where the welfare of the child requires it. She went on to say (paras 40 to 42):

Re A was decided at a point when the 2021 Act had received royal assent but was not yet in force. King LJ, declined therefore to ‘interpret or .. provide a commentary upon’ the changes which it brought about. She did, however, note that:

In F v M [2023] EWFC 5, Hayden J reaffirmed the principle that a section 91(14) order is a protective measure, not punitive. He held that an order lasting for several years may be necessary where one parent has used litigation as a form of coercive control or where ongoing proceedings have become harmful to the child’s wellbeing; in appropriate cases such orders can be used to protect the child and primary carer from ‘the stress and uncertainty of a misconceived or vexatious application’. He also described the section 91A provisions as ‘transformative’, holding (para 20) that:

Further guidance as to the making of section 91(14) orders following the implementation of the 2021 Act can be found in Practice Direction 12Q of the Family Procedure Rules 2010 (although, in considering the guidance it is necessary to bear in mind that, unlike the rules themselves, practice directions have no legislative force and carry no authority if they contain statements of the law which are wrong: see, for example, Re NY (A Child) [2019] UKSC 49 at para 38). Para 4.1 of PD12Q is concerned with the duration of orders and reinforces the tenth of the Re P principles by providing as follows:

The judge addressed the section 91(14) application towards the end of his judgment. In explaining his decision to grant the order, he said the following:

In advancing his case on appeal, F’s simple submission is that in circumstances where he had not litigated inappropriately it was wholly disproportionate to restrict his access to the court for a period of three years. Although the children have been harmed by the litigation, the responsibility for this lies not with him but principally with the professionals who have mismanaged the case. He informed me that he has raised a complaint about the local authority which has been upheld by the Independent Investigator.

In resisting the appeal, Ms Allwood submits that the judge was fully entitled to make the order he made for the reasons he gave. She says that the three-year duration was proportionate and justified, having regard to the statutory purpose of the order, the factual findings of the court below, and the applicable authorities.

M also asserts that she lives with the stress of F’s ‘continuous litigation’ which has financial and emotional consequences for her and the children. The latter are ‘exhausted’ by F’s relentless pursuit of rulings against her. She submits that:

Ms Allwood emphasises the provisions of section 91A and submits that ‘Taken together, the findings of harm, the entrenched pattern of coercive and controlling conduct, and the statutory and appellate guidance justify a minimum three-year interval before reconsideration. A shorter period would risk re-exposure to precisely the harm Parliament intended s.91A to prevent’. Alternatively, if the court is minded to interfere with the length of the order, any substituted term should be for a minimum of 24 months.

I begin by acknowledging that, as I outlined above, this experienced family judge was faced with a very difficult task. The case had been going on for over four years. No tangible progress had been made to the children’s relationship with F. With both parties acting in person, undertaking a meaningful process of fact-finding would have been challenging and created significant further delay. In circumstances where the litigation was causing harm to the children, he was entitled to come to the view that a pause was needed and that this should be bolstered by the making of a section 91(14) order.

In spite of the care with which the judge approached his task, I have reached the conclusion that he fell into error in dealing with the duration of the order.

The Re P guidelines make it necessary for a judge to give careful consideration to the ambit and length of any s 91(14) restriction in order to ensure that it is proportionate to the harm it is aimed at alleviating. As PD12Q makes clear, judges should give reasons for the length they have identified as appropriate. In this case, the judge selected a three year term but gave no explanation for that aspect of his decision. The question of proportionality was not addressed.

The duration of a section 91(14) order is a critical issue which should not be dealt with cursorily. There is a substantial difference between an order of short duration which affords children a pause from litigation and one which endures for several years. In my judgment, the benefit to children of sparing them from the corrosive effect of being placed at the centre of litigation must be balanced against the disadvantage they may suffer from restricting their parents’ ability to raise legitimate issues about their welfare before the courts. Even though a section 91(14) order is not an absolute barrier to making applications, it erects an additional hurdle for applicants to overcome. It is for this reason that it has been emphasised that the power is to be used with ‘great care’.

Although I previously determined that the judge was entitled to make a section 91(14) order, I do not consider that this was an obvious case for doing so. F’s initial application to spend time with his children took more than three years to resolve, but this was not his fault. The primary causes of the inordinate length of the proceedings were:

F’s application to enforce the order made in January 2024 was expressly foreshadowed by the terms of the order itself. I have set out the relevant recitals above. In bringing the matter back to court, F followed the approach which had been commended by the guardian and endorsed by the court when it approved the order.

In my judgment, it is regrettable that when the matter was restored to court in 2024 Cafcass determined that it was not appropriate to join the children, thus contradicting one the previous guardian’s recommendations. This had the effect of denying the children a degree of continuity which they badly needed. For the purposes of the enforcement application, two local authority reports were prepared by different social workers, neither of whom will have had the same level of knowledge about the proceedings as the previous guardian. The involvement of these new professionals, as well as a contact worker, must have been bewildering for the children. Being required to repeat their views to multiple different people is bound to have left them feeling that nobody was listening to them as they uttered the same sentiments on repeat.

This is not a case where F has abused the court process by making repeated applications or by indulging in the type of ‘lawfare’ described by King LJ in Re A. I reject the submissions made on behalf of M that F’s conduct of the litigation demonstrated an ‘entrenched pattern of coercive and controlling conduct’: no such finding has been made; the previous guardian’s reports lend support to the approach he adopted.

In explaining his decision to make a section 91(14) order, the judge made reference to one of the observations in Re A that such orders may be made ‘tangentially also to benefit all those other children whose cases are delayed as court lists are clogged up…’. I would emphasise, however, that King LJ in fact referred to the court lists being clogged up ‘by the sort of applications made in this case, applications which should never have come before a judge’. Re A was a case involving unreasonable litigation conduct by one of the parties. In my judgment, the desirability of easing pressure on the court lists should not routinely be used to justify the imposition of a section 91(14) order in cases where this feature is absent.

Most regrettably, this is a family which has been let down by the system. A section 91(14) order was justified as the prolonged litigation had become harmful to the children. In my judgment, however, it was disproportionate in the circumstances of this case to impose a three year restriction on making any type of application for orders under section 8 of the 1989 Act.

A is now nearly 15 and the wider issues have become academic in his case. He has attained an age where he will ‘vote with his feet’. T was not yet 10 when the order was made. Imposing a restriction for three years entailed limiting F’s ability to access the courts until T was nearly 13. If an application were to be issued upon the expiry of this limitation, it would probably mean that by the time it came to be heard T would be fast approaching his fourteenth birthday.

The section 91(14) order served the purpose of giving the children a break from litigation which had become relentless. It was also beneficial in reinforcing to them the security of their living arrangements with their mother. On an optimistic view, a cessation of hostilities might do more to achieve a restoration of the children’s relationship with F than had been accomplished over the four years of attritional parental combat. In a case where F had not been litigating inappropriately, however, the blanket three year restriction which was imposed was unjustified; a more bespoke approach was called for.

In my judgment, it was proportionate for the judge to restrict F’s ability to apply for a ‘lives with’ order for three years. There is no realistic prospect of A moving to live with F and no realistic prospect that the court would make an order separating the siblings. For four years the children’s lives have been clouded by a sense of insecurity occasioned by the potential for their living arrangements to be uprooted. Although I do not consider that F can be criticised for his conduct of the litigation, the welfare of the children requires a lengthy restriction to be in place to lift the cloud of uncertainty which previously hung over them.

So far as applying for a ‘spend time with’ order is concerned, the proportionate duration for the restriction, in my judgment, would have been 12 months. This would have given the children a significant degree of respite from litigation. In circumstances where it remained in the children’s long-term interests to repair their relationship with F, it was wrong, in my view, to impose a longer restriction. Although no child arrangements order was made, the current scheme for the children to spend time with F is inherently unsatisfactory and apparently unwelcome from the children’s perspective. It may well need to be reviewed in due course to see if a more fruitful arrangement can be put in place. The ongoing appeal has meant that the family has not had the benefit of the pause in litigation which the order was intended to achieve. In those circumstances, I will now extend the duration of this aspect of the order so that the restriction continues until 30 April 2026 meaning that by that date it will have run for approximately 15 months.

So far as other section 8 orders are concerned, I do not consider there was any need to impose a restriction at all save perhaps for a very short period of time. This aspect of the section 91(14) order should be immediately discharged. I was informed that the parties presently disagree about the most appropriate school for T to attend for his secondary education. I urge them to attempt to resolve this through mediation, but if they cannot do so it is an issue that will require urgent resolution through the courts. An unintended consequence of the present section 91(14) order is that neither party can make an application for a specific issue order without the leave of the court, a position which reinforces the need for ‘great care’ when a court is contemplating the making of such orders.

I want to end with a note of caution. Although I have decided to allow this appeal to the extent set out above, both parties should think carefully before issuing further applications. Mediation is usually a much better way of resolving disputes than going to court. As the history of this case demonstrates, litigation is an inherently flawed process. Judges can make decisions and craft orders, but do not have the ability to cause parents to change their attitudes towards each other. This is often the root cause of the harm which children experience when they are placed at the centre of adult conflicts. My decision to allow the appeal will not prevent a court in future from imposing further section 91(14) restrictions should the welfare of the children require it.