Paradigm Example of Supervised Contact

The classic statement of the legal principles at play when making a s91(14) order  under Children Act 1989 were set out by Butler-Sloss LJ[1], said Lady Justice King when the Court of Appeal unanimously dismissed a mother’s appeal: Re A (A Child)(supervised contact)(s91(14) Children Act 1989 orders [2021] EWCA Civ 1749: Lady Justice King, Newey, Arnold LJJ

Although the guidelines had substantially withstood the test of time and had received the endorsement of the court on a number of occasions in the intervening period, the fact remained that they were set out some 22 years ago.

In the intervening period the forensic landscape had changed out of all recognition. Amongst the many advances were the advent of the smart phone and of social media in all its forms.

Of particular relevance in this context was the almost universal use of email as a means of instant communication.

Another development of relevance was that as a result of the withdrawal of legal aid in the majority of private law cases, a large proportion of parents were unrepresented and therefore did not have the steadying influence of legal advisers.

A not uncommon consequence was that often the judge could be, and often was, bombarded with emails from a parent, male or female, who was representing him or herself.

That may be as a result of anxiety or, as in the present case, part of a campaign of behaviour by one parent against the other which amounted to a deeply disturbing form of oppressive behaviour.

Regardless of motivation, it was deeply distressing to the parent who was the subject of such abuse, and litigation at this level was highly debilitating to each of the parties and to their children.

Although an order made under s91(14) limited a party’s ability to make an application to the court, the court’s jurisdiction to make such an order was not limited to those cases where a party had made excessive applications, although that would frequently be the case.

The sort of harassment of the father seen in the present case in the form of vindictive complaints to the police and social services was an example of circumstances where it would be appropriate to make an order under s91(14), even if the proceedings were not dogged by numerous applications being made to the judge.

The guidelines did not say that a s91(14) order should be made only in exceptional circumstances.  Rather, guideline 4 said such an order should be the exception and not the rule.

Particularly where the type of behaviour indulged in by one parent amounted to the use of court proceedings as a weapon of conflict, or lawfare, the court may feel significantly less reluctance than had been the case hitherto before stepping in to provide by the making of an order under s91(14) protection for a parent from what was, in effect, a form of coercive control on the part of their former partner.

The guidelines in Re P should now be applied with those matters in mind.

It was worth noting that the Domestic Abuse Act 2021 which would come into force in accordance with provisions yet to be made by the Secretary of State dovetailed with the modern approach which the Court suggested should be taken to the making of s91(14) orders.

In particular, the provision at section 91A(2), if brought into effect, would give statutory effect to guideline 6 of Re P by permitting a s91(14) order to be made where the making of an application under the Children Act 1989 would put the parent or child at risk of physical or emotional harm.

Under section 91A(4) when considering whether to grant leave, the court would consider whether there had been a material change of circumstances.  Again, this would put the current approach to the granting of leave on a statutory footing.

In the present case, the judge’s analysis was unimpeachable and, on the facts as she found them, this was a paradigm example of a case where it was overwhelmingly in A’s best interests not only for contact to be supervised but for an order under s91(14) to be made.

[1] Re P (Section 91(14)(Guidelines)(residence) and Religious Heritage sub nom: In Re P (A Minor)(Residence Order: Child’s Welfare) [2000] Fam 15; [1999] 2 FLR 573 at p19