Private Law Update by Georgia Bradley, Pupil Barrister
ZA v YB (Appeal: Extending S91(14) Order: Unfair Procedure) [2025] EWHC 1869 (Fam)
Background
This case considers the issue of procedural fairness when extending a Section 91(14) ‘barring order’.
The dispute arose in private children proceedings. In March 2021, after a six-day fact-finding hearing in March 2020, a child arrangements order was made, which permitted the father only three letters per year and corresponding updates from the mother. It had been found that the father had been angry and abusive to his child, making several emotionally and psychologically abusive comments. It was also found that he had been coercive and controlling towards the mother, having emotionally and psychologically abused her, and stalked and harassed her.
A Section 91(14) order was also made against the father for a period of 4 years, which was to expire on 17 March 2025, with any application reserved to the Judge to be dealt with without informing the mother.
On 25th October 2019, the father was sentenced at Lewes Crown Court to two years and six months in custody for stalking the mother. He was also made subject to a 10 year restraining order, and was released from custody on 11th September 2020 subject to licence conditions.
The father’s licence expired in 2022, and three weeks after it expired, the father made an application for a child arrangements order, having sought the permission of the court that was consequently refused.
The father made another application for permission to apply for a child arrangements order in June 2024, stating that he had changed. HHJ Ahmed Refused the application and gave the following written judgment on 3 January 2025:
“10. Section 91A now provides that the circumstances in which the court may make a section 91(14) order include where the making of an application would put the child or the mother at risk of harm. I have taken into account Practice Direction 12Q. Section 91(14) orders are a protective filter both for the mother and the child. Knowing this case and the parties in it as well as I do, having seen them give evidence, I am satisfied that the mother is at serious risk of being harmed through a further application being made. I rely upon paragraph 67 and 68 above [from the 2021 judgment] to support that view. That is not within the father’s control, but he must take the mother as he finds her. Her vulnerability in large part has been caused by him. A further application would be a disaster for the mother and in turn for the child.
- Not only do I refuse the father permission to make an application for a section 8 order, I exercise the court’s power under section 91(14)(b) to make a further order for a period of 3 years from the date of expiry of the current order. My reason for doing so is that I am entirely satisfied that the father will immediately issue an application if he is allowed to do so. That will undoubtedly harm the mother and the child. The level of harm is likely to be high as it was before. The mere fact that the father may not have conducted himself inappropriately since the order was made is not the determining factor. I must take everything into account, in particular the vulnerability of the mother as set out in paragraphs 67 and 68. The reason for making the order for a period of 3 years is that by then the child will be 14 years old and more able to say what he wants in respect of any contact with his father. This case is not just about change in the father but includes the matter that I have just mentioned.
- I conclude, therefore, that the application for permission to issue a section 8 application must be refused. In order to provide protection for the mother and the child from harm, I must make a further section 91(14) order for a period of 3 years from 17 March 2025 expiring on 17 March 2028.”
The Legal Issues
The father sought to appeal this judgment on the following grounds:
- The Judge was wrong to have made the order without notice to the appellant, a litigant in person, and without giving him the opportunity to be heard on the issue.
- The Judge was wrong to have concluded that an application would undoubtedly harm the mother and child in the absence of any evidence of their current circumstances and those of the appellant.
- The Judge was wrong to have made the order for the duration of three years from 17 March 2025 – that was an arbitrary decision without any evidential basis.
On 21 February 2025, Judd J granted the father an extension of time and permission to appeal, directing that notice be served on the respondent mother along with the filing and service of a skeleton argument. On 24 March 2025, the mother applied for the child to be joined as a party and for the re-appointment of the former Guardian.
When Mr Justice Poole reviewed the appeal papers at that stage, there was still no copy of the 3 January 2025 Family Court order before the appeal court. A copy was eventually produced, but it contained only a single order: “The father’s application for permission to issue a section 8 application is refused.” It made no reference to any further s 91(14) order.
The appeal bundle, which should have been lodged at least two clear days before the hearing, was not filed until 14 July 2025—the day before. Included in it was an amended version of the court order, which the Family Court had sent to the appellant on 11 July 2025. It bore the heading: “Amended under the slip rule 11/07/25.”
This amended order included:
“The order made under section 91(14) on 17 March 2021, expiring on 17 March 2025, is extended until 4pm on 17 March 2028.”
Mr Justice Poole made the following observations:
“1. The Court was entitled to amend the order under the slip rule. FPR r29.16(1) allows the court “at any time” to correct “an accidental slip or omission in a judgment or order.” I have considered the President’s judgment in Re X and Y [2025] EWCA Civ 2 where he held at paragraph 66:
“This power, and its equivalent in CPR 40.12, is most often used to correct minor blemishes or omissions in orders. However, it can be deployed wherever there has genuinely been an accidental error or omission, but not as a way for the court to have second or additional thoughts: Santos-Albert v Ochi [2018] EWHC 1277 (Ch), [2018] WLR (D) 315, [2018] 4 WLR 88 at §27.”
Given that the Judgment clearly set out the order that the Judge intended to make, the failure to include the second order in the original version of the order of 3 January 2025 was clearly an accidental omission which the Judge was entitled to correct under the slip rule. The Judge was not having second or additional thoughts. Mr Anderson for the appellant did not argue otherwise.
- I am satisfied that for the purposes of this appeal the Judge made the further s91(14) order, “on disposing of an application for an order” under the Children Act 1989. By refusing permission to bring the application for a s8 order, the Judge was disposing of an application for an order, Neither party sought to argue otherwise when I raised that issue for consideration at the appeal hearing. Mr Anderson for the appellant conceded that the Judge was entitled in principle to make a s91(14) order subject to the matters which form the grounds of appeal.
- The Judge made the order of a further s91(14) order of his own motion. He was entitled to do so as provided for by Children Act 1989 s91A(5)(b).
- FPR 4.3(4) and (5) provide:
“(4) The court may make an order of its own initiative without hearing the parties or giving them an opportunity to make representations.
(5) Where the court has made an order under paragraph (4) –
(a) a party affected by the order may apply to have it set aside, varied or stayed; and
(b) the order must contain a statement of the right to make such an application.
(6) An application under paragraph (5)(a) must be made –
(a) within such period as may be specified by the court; or
(b) if the court does not specify a period, within 7 days beginning with the date on which the order was served on the party making the application.”
- The Judge did make the further s91(14) order of the Court’s own initiative and he did so without hearing the parties or giving them an opportunity to make representations. The appellant father had made representations about being given permission to bring an application for a s8 order, but not about a further s91(14) being made. He had not known that that was in the contemplation of the Court. The order does not contain any statement of the right of the appellant to make an application to set aside, vary or stay the order made without notice to him.
- The amended order – amended under the slip rule on 11 July 2025 – is to be treated as an order made on 3 January 2025. However, in reality the appellant has not had 7 days in which to apply to set aside, vary or stay the order made without notice and of the Court’s own initiative. However, after discussions at the hearing, I was pressed by the appellant to proceed with the appeal rather than to consider giving directions to extend time to make an application to set aside or vary the further s91(14) order. Ms Hopper for the respondent complained about the late preparation of the Appeal Bundle but I was satisfied that she was able to make submissions on at least ground 1 of the grounds of appeal without the need for an adjournment.”
Judgment
Mr Justice Poole noted that there was no notice at all made to the father, citing that a very significant order was made barring him from making applications concerning his child without permission for a further three years, without him knowing that such an order was being considered, and so with no opportunity for him to make representations, and as such this was a procedural irregularity.
Mr Justice Poole considered that there was a further procedural irregularity in that the Court when making the order, did not inform the father of his right to apply to set aside, vary or stay the order. Mr Justice Pool considered that the father should have been given notice that the Court was, of its own initiative, considering making a further s91(14) order and to allow him a short time within which to make representations as to whether the order should be made and, if it were made, its duration.
Given these procedural irregularities, the order made on 3 January 2025 was unjust and grounds 2 and 3 were not considered.
The matter was remitted for consideration by an alternate Circuit Judge at the same Family Court Centre to consider the matter afresh, the options being:
- To make no further barring order.
- To make a barring order to have effect until 17 March 2028, as previously ordered.
- To make a barring order for a shorter or longer duration.
Until then, Mr Justice Poole was satisfied that the child and the respondent mother would be put at risk of harm were any application for an order under the Children Act to be made by the father pending resolution of the remitted matter; therefore, making a barring order until 30 November 2025.
The full judgment dated 21 July 2025 can be found at:
https://www.bailii.org/ew/cases/EWHC/Fam/2025/1869.html
FM v MK [2025] EWFC 161 (B)
This case highlights the willingness of the court to impose stringent protective measures in private law cases, including no-contact orders, removal of parental responsibility, and restrictions on future legal applications, where serious abuse and continued control is established.
This matter concerns a private law child arrangements application between a mother (MK), father (FM), and their two children. It arose from allegations of serious abuse by the father, which were found to be proved at a fact-finding in advance of the final hearing.
Such findings against the father included:
- Regular verbal abuse;
- Physical abuse;
- Strangulation;
- Threats to kill the mother;
- Threats to kill himself with a knife and a gun;
- Emotional abuse;
- Coercive behaviour;
- Emotional manipulation;
- Rape on one occasion;
- Isolation; and
- Financial abuse.
Recorder Patel further found that there was continued abuse on the conclusion of the proceedings, namely:
a. The father made false allegations about the mother.
b. The father had been initiating and prolonging court proceedings, including making several applications within them, using them to exert control and pressure on the mother in particular by seeking protective orders against her.
c. The father had located the mother through a caravan site, having likely followed the children after contact, and located A’s (one of the children) school by exercising his parental responsibility with the local authority at a time when the mother and the children had been accommodated in a refuge.
d. The children had been exposed to some of those abusive features of the relationship, in particular D (the other child), as demonstrated by him in play therapy when he play acted out aggressive and abusive behaviours, both physically and sexually, between a mummy and daddy doll.’
On the day of the final hearing, the father made applications for an unidentified type of medical assessment (simply citing a medial assessment), an adjournment, and time to consider the bundle, on the grounds that he was not in the right state to deal with the hearing. The only new information provided by the father in making this application was that he did not take his new medication on 8 April (final hearing on 9 and 10 April) because it made him drowsy and he feared not waking up for the hearing. The judge considered that an assessment of any sort would cause delay and was not proportionate given the length of the proceedings and issues to be decided.
During proceedings the father continued to reject the court’s findings, repeatedly describing them as only “alleged.” He applied for contact with both his children though no contact had taken place between him and the children since November 2023.
The mother had significant concerns and did not wish for the children to have contact with their father, given the abuse as outlined above. She also considers that abuse would continue, would be emotionally abusive to her, and therefore impact the care she could provide to the children, exposing them directly to emotional harm. The mother was diagnosed as suffering as suffering complex PTSD, depression, generalised anxiety with panic attacks, which present as palpitations, sweaty hands, hyperventilation, feeling lightheaded and pins and needles. The facilitation of contact, in consultant forensic psychiatrist Dr Ratnam’s opinion, would present an ongoing source of threat for the mother and impact her mental health; and her condition would not likely improve.
The mother further sought a section 91(14) order due to concerns about the father being able to safely be involved in the children’s lives, raising that he could locate them again and apply pressure as he had during proceedings. The mother finally sought a non-molestation order and revocation of parental responsibility.
The recommendations of Mr Buckel of Cafcass were that there should be no contact, and it was noted in evidence that, given the risks could not be addressed, parental responsibility should be revoked.
Recorder Patel came to the following conclusion:
“94. Any contact between the father and the children carries a high risk of serious emotional, psychological and physical harm to the mother and the children. There is no mechanism for reducing those risks. I conclude in my judgment the detriment to the children’s welfare is such that there can be no contact between the father and the children.
- These proceedings have taken far too long to resolve, they have been emotionally draining on the mother and the father. However, the father has prolonged the process and exacerbated the harm on the mother from his conduct in the relationship being perpetuated through the proceedings. The father has completely failed to accept his behaviour towards the mother has been abusive. I do not yet see the stage at which the mother would be able to cope with any involvement of the father in the children’s lives. I do not consider the father will change his approach to the mother and therefore it will continue to harm her and the children. If the mother were to undergo treatment and effect some degree of recovery, the lack of change by the father is certain to set her back and de-stabilise her recovery. This would include by virtue of having to be included in decisions about the children. The mother needs a lengthy period of time without the father in her life to be able to begin and ensure her recovery can start, be maintained and sustained.
- I am mindful that restricting a parent’s contact is a significant interference with an individual’s Article 8 rights. However, this is a case in which I am satisfied it is necessary and the only proportionate means by which the children’s welfare can be safeguarded. The harm to the children is phenomenal from the effect of their father’s abuse on their mother and to them directly. I am satisfied any order for contact would be used by the father to continue the abuse perpetrated in the relationship and these proceedings, upon the mother in the future. I refuse the father’s application for the children to live with him. I grant the mother’s application for the children to have no contact with him. The removal of the father’s parental responsibility, a s91(14) order and a non- molestation order, in my assessment are necessary and form a protective framework to safeguard the children’s welfare. Whilst the children’s welfare may not be the court’s paramount consideration in these applications, I do consider it ranks high in the matters I must consider.
- I am satisfied if the father was to retain his parental responsibility, he would use it as a means to continue his abuse against the mother. He has already done so during the course of these proceedings, effectively weaponizing it to obtain information and further his abuse. I have no doubt he would use parental responsibility to obtain information about the children and the mother and seek to undermine the mother. If the father is permitted he will make any application he can and pursue it regardless of the merit as he has demonstrated in the weeks before the final hearing. It is clear that there is no possibility that the father will co-parent with the mother.
- Without parental responsibility, the law in relation to the making of specific issue orders and prohibited steps orders would not apply. Those orders would not have any effect and therefore the father would be free to make contact with the children. That would create a new avenue of risk. The children’s welfare is intrinsically linked to their mother’s emotional and psychological well being. I take into account that if the father did not currently hold parental responsibility, any application seeking it would likely be refused. I have considered whether it would be possible to limit his parental responsibility but in my assessment there is a lack of interest and commitment to the children, he has no interest in co-parenting and that would be incredibly fear an anxiety inducing to the mother. D and A will unlikely understand parental responsibility, their mother takes those decisions on a day to day basis and they will not see a difference. Taking those collective factors together, it is appropriate in this case that parental responsibility is revoked.
- I am satisfied as a result of the father’s conduct thus far, it is necessary to limit any applications about D and A by him until A is 16 years old because otherwise future applications would bring about emotional and psychological harm to both the mother and the children.
101. I am satisfied that a non-molestation order in the terms sought is necessary to safeguard the health, safety and well-being of the mother, D and A for the reasons I have discussed above. It reinforces the orders for no contact and the s91(14) order. It is necessary to prevent the serious harm identified to safeguard the mother and the children. I make that order until A is 16 years old. An order of such a length is unusual but necessary as a direct response to the level of ongoing risk of harm posed by the father, including that of homicide identified by Mr Buckel. The order is amended to remove the ‘except via solicitors’ means of indirect contact with the mother as he has continued to abuse her through the proceedings and applications to and through her solicitors.”
The full judgment dated 2 June 2025 can be found at:
