[2025] EWHC 1064 (Fam)

The law relating to permission to apply for a child arrangements order where there is an order in force pursuant to s.91(14) of the Children Act 1989 is considered in comprehensive terms in Re S (Permission to Seek Relief) [2006] EWCA Civ 1190, [2007] 1 FLR 482. In that case, the Court of Appeal observed as follows with respect to the correct approach to an application for permission to apply:

“[78] In relation to the judicial approach to applications for permission to apply, we should say, by way of preliminary observation, that we see no inconsistency between Thorpe LJ's test in Re A set out at paragraph 53 above: ("Does this application demonstrate that there is any need for renewed judicial investigation?") and Butler Sloss LJ's test in Re P set out at paragraph 54 above: ("the applicant must persuade the judge that he has an arguable case with some chance of success"). In our judgment the two complement each other. A judge will not, we think, see a need for renewed judicial investigation into an application which he does not think sets out an arguable case. In the first application, Judge Murdoch adopted the Re A approach, albeit with a cross reference to Re P. This seems to us perfectly sensible.

[79] It is self-evident that a party who is the subject of an order under section 91(14) which has been made because of particular conduct by that party must have addressed that conduct if his application for permission to apply is to warrant a renewed judicial investigation or to present an arguable case. Thus, to take an obvious example, a man who has been made the subject of a section 91(14) order following findings of fact by the court of both persistent domestic violence to his former partner and his children and a fixed and delusional belief that his children are the victims of parental alienation syndrome, is unlikely to succeed in an application for permission to apply for contact or residence if he makes it without any acceptance of the court's previous findings.”

In Re P & N (Children)(Section 91(14): Application for Permission to Apply: Appeal) [2019] EWHC 421 (Fam), [2019] 2 FLR 53, Cobb J noted that the approach set out in Re S (Permission to Seek Relief) remained the settled law. At [40] Cobb J set out the correct procedural approach to such an application for permission to apply:

“The appropriate procedure for a court to follow when presented with such an application, in my judgment, is that laid out in the judgment in Re S (see [18] above), namely that the application should be considered 'in the first instance' on the papers, or at on an oral hearing which can be 'without notice' to the respondent particularly if there are concerns about the effect on the respondent of learning of a fresh application (what Wall LJ referred to in Re S at [92]/[93] as "certain sensitive circumstances… a case in which the stress of previous litigation has destabilised the family, and in which the fragile capacity of the resident parent may well be adversely affected by the service of an application for permission to apply"– see [18] above). If the applicant seeks an oral hearing, he/she should not be denied this. If the application is without merit, then it can be dismissed at that stage, and the potential respondent may well have been spared any engagement with the process. However, if the application shows sufficient merit (i.e. the applicant has demonstrated a prima facie case that there is a need for renewed judicial investigation on the basis that he has an arguable case), the court should list the application for an 'on notice' hearing to allow the respondent to make representations.”