Re P & N (Section 91(14): Application for Permission to Apply: Appeal)  EWHC 421 (Fam) – explained by Joseph Lynch.
As the courts deal with more and more litigants in person in private law matters due to the lack of legal aid it seems an appropriate time to consider what can happen. In emotionally fraught contact hearings it can be very difficult for someone without representation to understand the nuances and factors actually being considered by the court when reaching a decision in the best interests of the child (ren).
When things don’t go the way it is hoped for a litigant in person, often because they have been fixating on the wrong point or have been unable to clearly express the points they do wish to make, the obvious reaction is to immediately or very quickly issue further proceedings. When this cycle is repeated a number of times the court has to consider the imposition of a restriction on further applications under s.91 (14) CA1989.
We are aware they are a draconian and relatively rarely used weapon at the courts disposal but with the lack of clear legal advice and emotions running high I suspect they may become more prevalent than they have been. With that in mind the recent case of Re P& N provides us with a clear guide on the procedure following the making of such an order and reasserts the position of Re P (Section 91(14) Guidelines)(Residence and Religious heritage)  2 FLR 573 as the starting point for when such orders should be made in the first place.
Re P & N concerns a successful appeal by a mother in a private children law case where an application by the father subject to a s.91(14) order for permission to apply for s.8 order was granted without hearing from her.
This case had been ongoing for a number of years following the separation of the couple in 2013, following various hearings in which adverse findings had been made against the father no contact had been ordered and eventually following numerous applications by the father in July 2016, an order under section 91(14) Children Act 1989 was imposed for 3 years.
The father made numerous further applications which were dismissed, then in March 2018 made an application for permission to apply for a section 8 (spend time with) order. This was a mere ten weeks after a similar application had been dismissed but some indirect contact had been agreed.
The application was heard by HHJ Plunkett without formal notice to M, or to the solicitor for the children (who had been joined to the earlier proceedings and represented by a Guardian). The Guardian had been invited to attend the hearing before HHJ Plunkett but was not in fact present. The Judge granted F’s application.
Once notified of the outcome of the application, the mother sought permission to appeal. Her single ground of appeal was that the Judge was wrong to grant the application without hearing from her or receiving her representations. Williams J granted permission to appeal, and Cobb J heard the appeal.
Cobb J allowed the appeal on the basis that the Judge had:
‘adopted, as it appears he had in the past, a flawed procedure, particularly on these facts. I have further concluded that his ultimate reasoning was erroneous. The appeal must therefore be allowed.’ (Para 45)
At paragraphs 8-19 of the Judgement we are given a very helpful guide through the development of the law and the relevant cases which influence the final outcome.
Essentially, when cut to the core it must be accepted that if such an order has been made it was not made lightly and the benefit to the party it has not been imposed on is essentially relief from litigation. With this in mind Cobb J states:
40. 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  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 / 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  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. This procedure is clearly indicated from the judgment in Re S but it was not followed here.
41. I would like to make three further points, which strongly support the approach outlined in  above. First, the grounds laid out in an application for permission to make a fresh application may not tell the whole, or indeed a true, story; the situation ‘on the ground’ may not be as the applicant asserts. Before a judge opens the gateway to fresh litigation – in circumstances when a court has earlier taken the exceptional course of imposing a restriction on further applications – an opportunity should be given to the respondent to fill any factual gaps, or correct any factual errors (deliberate or unwitting), in the material on which the judge is being asked to consider the application, and to respond on the merits. On this point, it is illustrative to reconsider what I set out at  above. Secondly, as Hale J contemplated in Re N (see  above), there may be no “genuine need to invoke the court’s assistance in the problem that had arisen” – a point which Thorpe LJ repeated in Re A (see  above: he referred to there being no need for “renewed judicial investigation”). It may be that the issue – when analysed with the benefit of both parties’ contributions – does not warrant the expense and time of court intervention, thereby saving the parties’ and the court’s limited resources. Thirdly, and yet more significantly, only by offering the respondent an opportunity to be heard will the judge, in my view, be fulfilling his or her obligation under the ‘overriding objective’ under the FPR 2010 to deal with case “justly” and “fairly” (see (iv) above): there will be few, if any, situations in which the respondent is not likely to be materially affected by the grant of the application to re-open the litigation. Justice and fairness surely require that the respondent is given the chance to inform and influence the decision whether further litigation should be instigated.
This is useful and clear guidance which allows us all to ensure that if people do find themselves in a situation where their access to litigation is limited we can offer correct advice regarding what prospects they may have of successfully applying and what may the proper process will be. Equally if the guidance offered is adhered to it may make any subsequent decisions by the court more palatable for all parties involved.
Central Chambers has a family team with experience in representing applicants and respondents in all manner of public family law proceedings.