How does s91(14) of the Children Act 1989 protect the best interests of children?

Section 91(14) of the Children Act 1989 (the Act) holds significant importance within the court’s toolkit in children cases. It plays a vital role in regulating the access of individuals to apply for child arrangement orders and is central to safeguarding the welfare of the child. Recent developments have expanded on this provision with the introduction of Section 91A of the Act. In this article, Laura Brown outlines the core principles of Section 91(14) and discusses the recent development with Section 91A.

Section 91(14)

This section of the Act grants the court the authority to impose restrictions on individuals who repeatedly make unfounded or vexatious applications concerning child arrangement orders which govern matters such as where a child will live and the time they will spend with each parent. Section 91(14) acts as a safeguard against frivolous and persistent applications, protecting both the child and the individuals involved in the proceedings. They can even be made on a pre-emptive basis, as occurred in A and B (Children: Restrictions on Parental Responsibility: Extremism and Radicalism in Private Law) [2016].

Key principles of Section 91(14):

1. Protection of the child’s welfare

The primary objective of Section 91(14) is to protect the best interests of the child involved in the proceedings. It aims to prevent the child from being subjected to unnecessary and harmful legal battles between parents. It sits alongside the paramountcy principle set out in Section 1(1) of the Act, that the child’s welfare is the court’s paramount concern.

2. Restricting vexatious litigation

This provision empowers the court to restrict the ability of individuals who habitually misuse the legal system by making repeated and baseless applications. The court can limit such applicants’ access to the judicial process, thus reducing the emotional strain on all parties involved and in particular the child.

3. Judicial discretion

While Section 91(14) provides the court with the authority to impose restrictions, it is important to note that these restrictions are not automatic. The court exercises its discretion in each case, considering the unique circumstances and whether it is in the child’s best interests to invoke this section against one of the parties. In any case in which Practice Direction 12J is engaged (any case concerning child arrangements where there is abuse alleged or admitted), the court is required to consider whether a Section 91(14) order may be appropriate even if it has not been applied for.

Recent developments

Historically there has been a reticence to make orders under Section 91(14) and they have been seen as the exception not the rule and as a weapon of last resort.

Section 91A was therefore inserted into the Children Act by the Domestic Abuse Act 2021 (alongside new Practice Direction 12Q) building upon the foundation laid by Section 91(14) by providing clear statutory guidance as to when a Section 91(14) order may be required. Section 91A is designed to widen the circumstances in which the court can make a Section 91(14) order and therefore improve the family justice system, making it more efficient and ensuring that the court’s time and resources are used judiciously.

It states that a Section 91(14) order can be made where the court is satisfied that the making of an application under the Children Act by the named person would put the child concerned or another individual at risk of harm. It can be made upon application by either party or by the court of its own motion.

The developments in this area of law show the growing understanding of the impact of litigation abuse (“lawfare”) on children and their parents and the use of the court itself as a tool of controlling behaviour or abuse and exemplifies the commitment to addressing the serious issues of domestic abuse and safeguarding the welfare of children. These provisions are designed to work in harmony and aim to strike a balance between ensuring access to justice and protecting the best interests of the child, with the ultimate aim of fostering a more child-centred and efficient family justice system.

If you are dealing with issues relating to children (including domestic abuse), please contact Laura Brown.