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.49. In its analysis, the Court of Appeal in Re A noted that the forensic landscape had changed out of all recognition since the Re P guidelines came into being and drew attention to the advent of social media, the smart phone and email coupled with a significant number of unrepresented parents in private law proceedings. Despite the court’s powers of case management, litigants regrettably bombarded the court or the other party with emails, either because of anxiety in some cases, or in others, as part of a campaign of oppressive behaviour by one parent against the other (see paragraphs 34-35). This behaviour caused distress and anxiety both to the party on the receiving end and to the children at the centre of what the Court of Appeal described as a “raging dispute” (paragraph 36). Such behaviour underlined the need for the court to use s.91(14) orders to restrict access to the court in cases of repeated and unreasonable applications. Additionally, the Court of Appeal noted that the court’s jurisdiction to make such orders may be invoked in cases where the child’s welfare required it even though there was no past history of making unreasonable applications. There was considerable scope for making these protective orders in the changed litigation landscape described in Re A since to do so would not only protect an individual child from the effects of endless unproductive applications and/or a campaign of harassment by the absent parent, but tangentially would also benefit all those other children whose cases were delayed as court lists were clogged up by the sort of applications which should never have come before a judge (paragraph 40). 50.Noting the imminent changes to section 91(14) orders envisaged by the Domestic Abuse Act 2021, the Court of Appeal in Re A observed that section 91A dovetailed with the modern approach outlined in that decision. It noted that the provision at s.91A(2) gave statutory effect to guideline 6 of Re P by permitting a s.91(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 (paragraph 45). Likewise, section 91A(4) requires the court when considering whether to grant leave to consider whether there had been a material change of circumstances. The Court of Appeal in Re A noted that this provision would put the current approach to the granting of leave on a statutory footing (paragraph 46).51.Section 91(14) orders are, of course, not restricted to private law proceedings but are available to the court when determining a public law case.52.Both the local authority and the children’s Guardian invited me to make a section 91(14) order for each child until they reached the age of 18, restricting the father’s ability to apply to discharge or vary the Children Act orders I made at the conclusion of these proceedings and, for the avoidance of doubt, to make any application for any other Children Act order which might have the effect of discharging or varying the Children Act orders made at the conclusion of these proceedings. The father did not actively oppose the making of section 91(14) orders.53.There is little doubt that the welfare of these children requires freedom from future litigation initiated by their father. Their father has caused the gravest emotional harm to them by killing the mother. In so doing, he has deprived them of her care throughout what remains of their childhood and into adulthood. Whilst the younger children have been told that their father hurt their mother so that she died, the details of what occurred are not yet known to them. P knows more of what took place but his knowledge remains incomplete for the moment. In due course, all three children will learn what is known by the authorities as to the circumstances in which the mother died. Coming to terms with that information will place a significant emotional and psychological burden on these children. This is not just because of the circumstances of the mother’s death but also because the man all three love - their father - was responsible. That factor complicates and intensifies the psychological and emotional burden these children face.54.Even if the father were remorseful and anxious to atone for what he has done to his children, I consider that further applications by him would undoubtedly place these children at risk of harm and the impairment of their mental health. However, the father is neither contrite nor remorseful - and maintains the lies he told police at the very outset of the investigation into the mother’s disappearance, namely that she is alive and has run away abroad to live with a boyfriend. Maintaining that fiction in the context of future applications in respect of the children would, in my view, be profoundly destructive of these children’s emotional well-being. How would they reconcile what they have learned of the mother’s death with their father’s protestations of innocence in the face of overwhelming evidence of his guilt?55.Any application made by the father - unless filtered by an order pursuant to s.91(14) - would likely require the children’s views to be sought. The procedural reality of any application in circumstances such as these would create emotional uncertainty for these children and is likely to impair their mental well-being.56.In coming to that view, I have factored into my analysis the children’s vulnerabilities and experiences. It is plain from my reasoning that, without the imposition of a permission filter, the children would be subject to unacceptable strain and risk of harm if further applications were made. S.91A(2) provides that an order may be appropriate if the child is at risk of harm, harm being defined in accordance with section 31(9) of the Children Act 1989 to mean “the ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another”. The risk that harm may arise to a child under the age of 18 unless the making of applications is restrained is not qualified by words such as “serious” or “significant” and neither is the degree of harm that a child may experience. I observe that, insofar as the risk that harm may arise to a child is concerned, section 91A(2) sits a little uneasily alongside guideline 7 of the Re P guidelines which states that there must be a “serious risk [my emphasis] that, without the imposition of the restriction, the child or primary carers will be subject to unacceptable strain”. Correctly applied to a child’s circumstances, section 91A(2) gives a court greater latitude to make section 91(14) orders than the Re P guidelines do. Thus, in coming to my decision in this case, I have applied the new statutory approach to harm set out in s.91A(2) rather than guideline 7 of the Re P guidelines and, in so doing, I have adopted the ordinary civil standard of proof. That course is consistent with the modern approach of the Court of Appeal in Re A as outlined above. 57.I observe that section 91A(3) introduces a narrower definition of harm which applies to a child or other individual who has reached the age of 18, namely that harm is to be read as a reference to ill-treatment or to the impairment of physical or mental health. The explanatory notes to the Domestic Abuse Act 2021 provide that this narrower definition has been used because, in contrast, the definition in s.31(9) of the Children Act 1989 encompasses elements specific to a child, such as the impairment of development.58.I have thought very carefully about the degree of restriction I should impose and, in so doing, taken into account the Re P guideline 10. My assessment of the harm which may arise if the father were to make further applications is that it would be grave and profoundly destabilising for each of these children. I have also considered the duration of any s.91(14) order and have concluded that these orders should last until each child is 18 years old. Protecting the children for a few years might give stability to P for example but thereafter would expose the younger children – at the start of or on the cusp of adolescence with its attendant emotional and psychological changes – to the profoundly destabilising effect of further applications at a time when they would be particularly vulnerable. 59.I am thus satisfied that s.91(14) orders to last until each child reaches the age of 18 are necessary and proportionate. The father should not be permitted to apply to vary or discharge any of the orders made at the conclusion of these proceedings. For the avoidance of doubt, he should not be permitted to apply for any Children Act order which would have the effect of discharging the care orders or the orders pursuant to section 34(4). I will reserve any application for permission to myself if available or to the Family Division Liaison Judge for the Midlands if I am not.