Bethany Brown-Lecturer Nottingham Law School
Section 91(14) of the Children Act 1989 allows the court to prevent individuals from making further applications to court without the court's permission. We see this most commonly where perpetrators of domestic abuse repeatedly bring survivors back to court without purpose other than causing distress. Or where parents bring repeated applications when they do not like the final outcome and these repeated proceedings cause harm to a child or the other parent.
Whilst in principle, to a survivor of abuse, this might sound like a welcome solution to a distressing situation of ongoing conflict, in practice such orders are less often beneficial than might be imagined, due to the nature of their use and prescribed duration. The length of the order is of particular significance. Sections 91(14) and 91A are silent on the duration of a Section 91(14) order. This is because the Court has the discretion to impose any time limit which is proportionate to the harm it is seeking to avoid.
His Honour Judge Steven Parker has given a judgment in B v C [2022] EWFC 189 (14 December 2022) which highlighted that the circumstances for obtaining a Section 91(14) order for an indefinite duration have to be extreme, a conclusion which is likely to be distressing for survivors desperate for proceedings to cease.
This was a private law case between an Applicant Father and Respondent Mother in respect of a child, who was at the time of judgment 5 years of age. The Father made three applications to the court. Namely: a section 8 child arrangement order ‘spend time with’, a section 4 application for parental responsibility and a Non-molestation Order (Section 42 Family law Act 1996) against the Respondent Mother. The Mother made a counter application for a Section 91(14) order to prevent future applications by the Father.
In 2004, the father had received 10 sentences of life imprisonment in respect of seven offences of rape, one offence of kidnapping, one offence of attempted kidnapping, and one offence of false imprisonment. All of these were committed against a previous partner who was just 17 years of age at the time.
He was required to serve a minimum of 11 years and was released in 2015 on licence. Within a few months, he had formed a relationship with the Mother in these proceedings. The Father moved in with the Mother and during the relationship the Mother complained of significant systematic sexual violence and multiple rapes. She eventually made complaints to the police. The Father was charged and ultimately convicted of 31 separate offences. In 2019, he received 24 life sentences in respect of 24 counts of rape (30 months sentence each), two counts of engaging in controlling and coercive behaviour (60 months sentence), two counts of false imprisonment (three years sentence each) and two counts of threats to kill (four years sentence each).
During the proceedings the Father maintained that he had not committed any offences and that he was falsely accused by the Mother who had fabricated the allegations.
It is worthwhile noting that in family court proceedings, where an abusive parent has been convicted of a relevant crime such as a sexual or violent offence against the other parent, this conviction is proof that they committed that offence unless the contrary is proved. (Re H-N and Others (Children) (Domestic Abuse: Finding-of-Fact Hearings) [2021] EWCA Civ 448, paragraph 73).
The Father’s stance posed some difficulty for the court, as the conviction was proof of the offence, and his refusal to undergo any work in respect of sexual violence against women, demonstrated a complete lack of insight, contrition, or aspiration to change. Within judgment, His Honour Judge Steven Parker reached the following conclusion about the Father “[he is] a deeply unimpressive witness and I reject his account as fanciful. Indeed, four of his own comments exposed him for the type of person that he is.” He further stated that judgment that “I am not satisfied that [the Fathers] involvement in the life of his son and the Mother can take place in a way that is safe.”
Yet despite this finding and the string of violent convictions, it was still not deemed appropriate in His Honour Judge Steven Parker’s view to grant a Section 91(14) for an indefinite duration. In Judgment His Honour granted the order for a period of 10 years stating: “Whilst that is an exceptionally long period, in my view, this is an exceptional case because of the nature of the father's offending, his failure to accept the convictions, his attempts to influence the mother to retract her evidence and his sophisticated, controlling personality, as I find it to be.” The submissions made by the Mother and the Children’s guardian seeking an order of indefinite duration were not found to be persuasive even on these unusual and extreme circumstances. The Court did not consider such an approach to be proportionate and instead focused upon the child being 15 years of age at the time the bar would cease, and thus at an age where he would have a greater awareness of the existence of his Father.
On the one hand, this mode of dealing with the situation does allow for the possibility of a relationship between the child and the Father in the future. However, on the other hand, it creates the question of whether it would ever be proportionate for an indefinite order to be made, if even the facts of this case were insufficient to justify such a move. Furthermore, the practical implications of this judgment potentially open a 15-year-old up to the trauma of court proceedings, when it would arguably be preferable to prevent this, and simply allow the young person to make a decision about a relationship with their father upon reaching adulthood.
Comments