(Family Division; Munby LJ (sitting as a judge of the Family Division); 25 November 2009)
The private law proceedings, involving an application under Children Act 1989, Schedule 1 by the mother, and residence and contact proceedings by the father, had been ongoing for over 5 years, and were acrimonious, confrontational and emotionally fraught. The guardian considered that the parents, by their behaviour towards each other and by their conduct of the litigation, had caused the child, who was now 8-years old, emotional harm. The mother and guardian had both applied for s 91(14) orders to be made. By the hearing the father and guardian were both proposing a term of 4 years for these orders; the mother was proposing either 8 years or, as a default proposal, 4 1/2 years, which would be after the child's Bar Mitzvah.
A s 91(14) order was made against both parents for 4 years. While the father had been responsible for litigation misconduct, the mother's conduct had not been blameless. The child needed the litigation to end. The judge had been very close to making the order for a longer period, but had ultimately accepted the guardian's reasoning. However, expiry of the order would not mean that further litigation would be acceptable; a material change of circumstance would be needed. The court would have the power, after expiry of the s 91(14) order, to summarily dismiss an application either without merit, or whose pursuit was not in the child's best interests. Both parties should bear in mind their potential exposure to adverse costs orders in the event of future unsuccessful applications. They should also bear in mind the limited ability of the court to resolve parental disputes as to the arrangements for a Bar Mitzvah, and the likely impact on the child if it became apparent to him that his parents were unable to agree even on that.