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RESIDENCE/RESTRICTIONS ON APPLICATIONS: Re G (Residence: Restriction on Further Applications) [2008] EWCA Civ 1468

Date:14 JAN 2009

(Court of Appeal; Ward and Rimer LJJ; 6 November 2008)

The father obtained a contact order in respect of the child, who was living with the mother. When the father appealed the contact order, the mother applied for an order under Children Act 1989, s 91(14). The father's appeal succeeded, in that he obtained more contact, but the judge went on to make a s 91(14) order, restraining both parents from making further applications under s 8 of the 1989 Act without leave of the court,for a period of 3 years, stating that he was concerned about the father making further applications to the court that would be 'detrimental to the child'. The mother alerted the judge to the fact that there was no residence order in place, and invited him to make one at the same hearing. The father, a litigant in person, sought an adjournment to consider his position. The judge refused the adjournment, and made the residence order in the mother's favour, on the basis that it reflected existing arrangements. The father appealed against both the s 91(14) order and the residence order.

The father's appeal was allowed. The judge had failed to apply the guidelines on the making of s 91(14) orders. Such orders were to be made sparingly and as the exception, in situations in which the court found facts beyond those commonly encountered. Given that the father's applications to the court had been well founded and not excessive, the making of a s 91(14) order could not be justified. There was no evidence of risk of detriment to the child in further applications. Further, the judge's refusal of an adjournment to a litigant in person in these circumstances was a procedural irregularity and unfair. The mother's application should have been adjourned, given that the issue of residence was a matter of importance to the father.