ZA v YB (Appeal: Extending S91(14) Order: Unfair Procedure) [2025] EWHC 1869 (Fam) – Appeal against the making of a S91(14) Order by the Father
Key Reminders:
The Domestic Abuse Act 2021 inserted Section 91A into the Children Act 1989 by Section 67(3) of the Domestic Abuse Act which includes the following:
1) this section, makes further provision about orders under section 91(14).
(2) 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.
(3) in the case of a child, or other individual who has reached the age of eighteen, the reference in subsection (2) to ‘harm’ is to be read as a reference to ill-treatment or impairment of physical or mental health.
(4) where a person who is named in a section 91(14) order applies for leave to make an application of a specified kind, the court must, in determining whether to grant leave, consider whether there has been a material change of circumstances since the order was made.
This case acts as an important reminder that in granting a Section 91(14) order, the court must act with procedural fairness. The Guidelines from Re P (Section 91(14) Guidelines)(Residence and Religious heritage) [1999] 2 FLR 573, para 41 act as a helpful reminder. Whilst this authority pre dates the Domestic Abuse Act, the Court in Re A (A CHILD) (supervised contact) (s91(14) Children Act 1989 orders) [2021] EWCA Civ 1749 confirmed that “the guidelines have substantially withstood the test of time”(1) and “The guidelines in Re P should now be applied with [a modern context] and in my judgment the prolific use of social media and emails in the modern world may well mean that orders made under s91(14) need to be used more often in those cases where the litigation in question is causing either directly or indirectly, real harm.”
1). Section 91(14) should be read in conjunction with section 1(1) which makes the welfare of the child the paramount consideration.
2). The power to restrict applications to the court is discretionary and in the exercise of its´ discretion the court must weigh in the balance all the relevant circumstances.
3). An important consideration is that to impose a restriction is a statutory intrusion into the right of a party to bring proceedings before the court and to be heard in matters affecting his/her child.
4). The power is therefore to be used with great care and sparingly, the exception and not the rule.
5). It is generally to be seen as an useful weapon of last resort in cases of repeated and unreasonable applications.
6). In suitable circumstances (and on clear evidence), a court may, impose the leave restriction in cases where the welfare of the child requires it, although there is no past history of making unreasonable applications.
7). In cases under paragraph 6 above, the court will need to be satisfied first that the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the Court and the all too common situation where there is animosity between the adults in dispute or between the local authority and the family and secondly that there is a serious risk that, without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain.
8). A court may impose the restriction on making applications in the absence of a request from any of the parties, subject, of course, to the rules of natural justice such as an opportunity for the parties to be heard on the point.
9). A restriction may be imposed with or without limitation of time.
10). The degree of restriction should be proportionate to the harm it is intended to avoid. Therefore the court imposing the restriction should carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained and the duration of the order.
11). It would be undesirable in other than the most exceptional cases to make the order ex parte. (2)
Judgement
This judgement concerns an appeal made by the father against the making and extension of a s91(14) order in private children proceedings. The matter originally concluded following a six-day fact find hearing in March 2021, where it was found the father emotionally and psychologically abused the mother and child. The father had been sentenced to prison for two and a half years and made subject to a ten-year restraining order for stalking and harassing the mother in October 2019. (3)
The child arrangements order made in 2021 permitted paternal time with the child to the extend of three short letters per year, alongside three updates on the child’s development, schooling, and health from the mother. Additionally, the judge made a s91(14) order against the father for four years, with all applications made by him to be reserved to the Family Court judge, HHJ Ahmed, to be dealt with in the first instance.
Three weeks after the father’s licence expired after his imprisonment in 2022, the father made an application seeking the court’s permission for a child arrangements order. HHJ Ahmed refused permission in this instance. A further application was made by the father in June 2024 alongside a letter of support. HHJ Ahmed gave a “written judgement” provided to the father in January 2025.
Alongside refusing the father’s application for a section 8 order, HHJ Ahmed extended the s91(14) order for an additional three years until 17 March 2028 citing the undoubtable harm that would come to both the mother and the child should the matter be litigated, in the father’s absence.
Paragraph 9 of the judgement outlines section 91(14) orders:
“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 father appealed this decision on three grounds of appeal:
The Judge was wrong to have made this order without giving notice to the father, who represented himself. As a result, he was not afforded the opportunity to be heard on the issue. The father relied on the authority of Tomlinson LJ in Re T (A Child) (Suspension of Contact) (s91(14) Ch A 1989) [2016] 1 FLR 916, CA
“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”
2. The Judge was incorrect in concluding that the application for a section 8 order would absolutely cause harm to the mother and child with no current evidence.
3. The Judge was incorrect in making an additional order for a s91(14) for a further three years without any evidence.
Mr Justice Poole found the decision was unjust as a result of significant procedural irregularity. A s91(14) order is significant in barring a parent from making an application to the court – a parent who is not afforded the opportunity to make representations or be aware of the court’s consideration of the order, particularly where they are representing themselves, is not afforded (natural) justice. Additionally, the court did not make the father aware of his rights to apply to set aside, vary, or stay the order. A parent should be given notice, even short notice, of the court’s consideration of such a significant order.
Mr Justice Poole remitted the case to the Family Court at Sussex, Brighton to be heard by a Circuit Judge. He held that although HHJ Ahmed had jurisdiction to make a further s91(14) order when refusing the father’s application, the procedure adopted was significantly procedurally unfair. On remittal, the allocated Judge would retain the power to make a further s91(14) order after assessment of the current evidence. The appeal process itself should not deprive the Court of the power that it could have exercised if it had acted with procedural fairness.’ While acknowledging the procedural complexities, the court emphasised that the court’s process should not have deprived the father of knowledge of the court’s considerations and should have considered evidence on the mother and child’s current circumstances.
(1) Re A (A CHILD) (supervised contact) (s91(14) Children Act 1989 orders) [2021] EWCA Civ 1749, para 34
(2) Re P (Section 91(14) Guidelines)(Residence and Religious heritage) [1999] 2 FLR 573, para 41.
(3) ZA v YB (Appeal: Extending S91(14) Order: Unfair Procedure) [2025] EWHC 1869 (Fam), para. 3.
Written by Consultant Barrister, Claudia Saxton.
Law is correct as of 29th August 2025. Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational purposes. Readers are respectfully reminded that it is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose. No liability is accepted for any error or omission contained herein.
