(Court of Appeal; Thorpe and Wall LJJ; 23 April 2009)
The mother, who was a litigant in person, applied to end the supervision of her contact with the 8-year old child. Some years earlier the mother had been diagnosed as suffering from a schizophreniform illness. The mother's application was adjourned, in part to allow her to obtain legal representation, with a direction requiring her to file copies of all medical evidence. At the adjourned hearing the mother was still unrepresented, and had produced no medical evidence. The social worker was recommending that the contact should continue to be supervised. The judge dismissed the mother's application, and, at the invitation of the father's counsel, went ton to make a s 91(14) order against the mother for 5 years.
The s 91(14) order had been made altogether too casually, and in disregard of clear authority from the Court of Appeal. The making of such orders should always be exceptional, and careful consideration had to be given in every case to the duration of the order, so rights of access to the court were not prejudiced by any unnecessary extension. The mother was a litigant in person, with a medical history suggesting that she had been, and perhaps still was, in the care of a consultant adult psychiatrist; she had had no notice of the application whatsoever and there was nothing to suggest that the judge had explained to her the rights that she undoubtedly had to seek an adjournment, or to argue that an application of this sort should have been made with due formality, and to require such formality to be observed. Further, an order lasting 5 years, in relation to an 8-year old child, seemed on the face of it, disproportionate.
The court went on to give procedural guidance on the making of s 91(14) orders. Ideally, such an application should be made in writing on notice in the normal way, but if the question of a s 91(14) order arose during or at the end of a hearing, either on the application of one of the parties, or on the court's own initiative, the court was entitled to go ahead and make a s 91(14) order, even if one or more of the parties was unrepresented. It was, however, of the utmost importance that the party or parties or other persons affected by the order, particularly if they were in person: (a) understood that such an application was being made, or that consideration is being given to making a s 91(14) order; (b) understood the meaning and effect of such an order; and (c) had a proper opportunity to make submissions to the court in answer to the application or to the suggestion that a s 91(14) order be made. If either party (and in particular the person affected by the s 91(14) order) was unrepresented, it might be possible for the court to deal with the matter in argument without a formal application, however, if the representative for the party affected sought a short adjournment to take instructions, such an application should normally be granted.
If there was a substantive objection to the s 91(14) order, then the court should require the application to be made formally on notice in the normal way. To ensure that a party, particularly a party acting in person, (a) understood the effect of such an order; and (b) was given a proper opportunity to respond to it, the court might have to adjourn the application for it to be made in writing and on notice. If the parties were both or all in person, there was a powerful obligation on any court minded to make a s 91(14) order to explain to them the course the court was minded to take. This would involve the court telling the parties in ordinary language what a section 91(14) order was; and what effect it had, together with the duration of the order that the court had in mind to impose. Above all, unrepresented parties must be given the opportunity to make any submissions they wished to make about the making of such an order, and if there was a substantive objection on which a litigant wished to seek legal advice, the court should normally either not make an order; or make an order and give the recipient permission to apply to set it aside within a specified time.