F v M [2023] EWFC 5: Section 91(14) Orders to Prevent Litigation Abuse and Coercive and Controlling Behaviour in Private Children Proceedings

This is the latest judgment by Mr Justice Hayden in a long running private children matter. I discussed the previous fact finding judgment in my blog on identifying controlling and coercive behaviour in the Family Court.

In summary, this case concerns two children, now aged 8 and 5. In January 2021 Mr Justice Hayden made a number of serious findings against the father, described as being ‘at the highest end of the index of gravity’ including that he had raped the mother on a number of occasions and that his behaviour constituted a pattern of coercive and controlling behaviour. Within the fact finding judgment, Mr Justice Hayden described the father’s abuse as ‘a brutalising, dehumanising regime…which subjugated her and was profoundly corrosive of her autonomy’.

I would recommend reading the judgment in full as it provides an important insight into issues which may arise in cases where the court has made findings of coercive and controlling behaviour, and how these apply in particularly serious circumstances, as was the case in F v M. This blog is divided into two parts and will address two key issues, the first being orders made pursuant to section 91(14) Children Act 1989.

What is a section 91(14) order?

A section 91(14) order can be made at the conclusion of private or public law children proceedings and will prevent a party from making any further application without the leave of the court. A section 91(14) order may be made on the application of either party or on the court’s own motion.

In F v M, Mr Justice Hayden commented that section 91(14) had ‘always been intended to provide a protective filter from inappropriate applications. The filter exists to protect the child and, not infrequently, the parent with whom the child lives. It is not a punitive measure towards a recalcitrant parent. Neither is it a bar on access to justice.’

The widening scope for use of section 91(14) orders and key principles

Mr Justice Hayden set out the relevant guidance in respect of section 91(14) orders and described the provisions within section 91A Children Act 1989 (which was inserted in May 2022 pursuant to the Domestic Abuse Act 2021) as ‘transformative’.

Mr Justice Hayden referred to the case of Re A (A Child) (Supervised Contact) (Section 91(14) Children Act 1989 Orders) [2021] EWCA Civ 1749, in which King LJ stated that social media and wide access to smart phones had opened considerably wider scope for the greater use of section 91(14). Further, King LJ had identified a concept of ‘lawfare’ – the use of court proceedings as a weapon of conflict.

Importantly, in F v M Mr Justice Hayden emphasised that section 91A ‘provides a powerful tool with which Judges can protect both children and the parent with whom they live, from corrosive, demoralising and controlling applications which have an insidious impact on their general welfare and wellbeing and can cause real emotional harm.’

Further, ‘this amended provision strikes me as properly recognising the very significant toll protracted litigation can take on children and individuals who may already have become vulnerable, for a variety of reasons. It also dovetails with our enhanced understanding of the nature of controlling and coercive behaviour. When all other avenues are lost, too often the Court process becomes the only weapon available. Lawyers and Judges must be assiduous to identify when this occurs, in order to ensure that the Court is not manipulated into becoming a source of harm but a guarantee of protection.’

This is a significant acknowledgment that abusers can use the court process to exert further control. It is extremely important that both judges and lawyers are alert to this and are more proactive in preventing the court process from being manipulated in this way.

Mr Justice Hayden emphasises the utility of section 91(14) orders in such cases, in addition to the more traditional situation where there has been a history of repeated and/or vexatious applications. Case law over the last few years has affirmed that section 91(14) orders are available in a broader range of circumstances, and F v M further clarifies this.

Practice Direction 12Q provides further useful guidance on section 91(14) orders, including the following: 

• The court has a discretion to determine the circumstances in which an order would be appropriate. These circumstances may be many and varied. They include circumstances where an application would put the child concerned, or another individual, at risk of harm (as provided in section 91A), such as psychological or emotional harm. The welfare of the child is paramount.

• These circumstances can also include where one party has made repeated and unreasonable applications; where a period of respite is needed following litigation; where a period of time is needed for certain actions to be taken for the protection of the child or other person; or where a person’s conduct overall is such that an order is merited to protect the welfare of the child directly, or indirectly due to damaging effects on a parent carer. Such conduct could include harassment, or other oppressive or distressing behaviour beyond or within the proceedings including via social media and e-mail, and via third parties. Such conduct might also constitute domestic abuse.

• A future application could also be part of a pattern of coercive or controlling behaviour or other domestic abuse toward the victim, such that a section 91(14) order is also merited due to the risk of harm to the child or other individual.

• In proceedings in which domestic abuse is alleged or proven, or in which there are allegations or evidence of other harm to a child or other individual, the court should give early and ongoing consideration to whether it would be appropriate to make a section 91(14) order on disposal of the application, even if an application for such an order has not been made.

In F v M, Mr Justice Hayden concluded that father had ‘found the opportunity to extend his controlling behaviour into the Court arena.’ He made a section 91(14) order until the youngest child had turned 18, highlighting that, as sections 91(14) and 91A Children Act 1989 are silent on the duration of section 91(14) orders, the court has a discretion as to the appropriate duration. He stated that ‘any time limit imposed should be proportionate to the harm it is seeking to avoid’ and ‘the court should explain its reasons for the duration ordered’.