RS v Birmingham City Council & Ors [2025] EWFC 94 (B) (20 February 2025)

Neutral citation number: [2025] EWFC 94 (B) Case No: BM24C50307 IN THE FAMILY COURT AT BIRMINGHAM Priory Courts 33 Bull Street Birmingham B4 6DS Date of hearing: 20 February 2025 Before : DISTRICT JUDGE PARKER - - - - - - - - - - - - - - - - - - - - - Between: RS Applicant - and - (1) BIRMINGHAM CITY COUNCIL (2) AT (3) MH (4) GF (5) THE CHILDREN (Via their Children's Guardian) Respondents - - - - - - - - - - - - - - - - - - - - - Digital Transcription by Marten Walsh Cherer Ltd., nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP. Telephone No: 020 7067 2900. DX 410 LDE Email: info@martenwalshcherer.com Web: www.martenwalshcherer.com - - - - - - - - - - - - - - - - - - - - - THE APPLICANT acted In Person, but was not in attendance RAMANDEEP CHAHAL (instructed via Birmingham Children's Trust ) for the First Respondent CHRIS BEELEY (S) (instructed by Star Legal Solicitors ) for the Children's Guardian - - - - - - - - - - - - - - - - - - - - - JUDGMENT DISTRICT JUDGE PARKER : This is an application concerning three children: SI, who is seven, SA, nine and SH who is eleven. This is the Mother's application to discharge the care orders and to seek the three children's return to her care. In the alternative, she also makes an application under section 34 of the Act for a significant increase in her contact. This matter came before me on 10 March 2023 where I made final care orders. The reasons for those orders are contained in my judgment which can be found at internal page 83 of the bundle. That order itself was subject to a further hearing before me where the mother sought to re-open the findings that I had made which I declined to do in a judgment which can be found at [2024] EWFC 244 (B) . The Mother maintains that she has made significant positive steps, more particularly in relation to her new child, which was born close to the conclusion of the original proceedings before me, but dealt with by another judge as separate proceedings, whereupon she completed a successful parenting assessment. I understand that those proceedings concluded with a twelve-month supervision order, the child remaining in her care. The mother has been represented throughout, save and to the extent of the run-up to this hearing, where she now acts in person. I have read her supporting statement. She maintains that the current contact is insufficient. She would like that contact to also involve her parents, as well as her new child. She seeks a reassessment in view of the positive outcome of the other proceedings in relation to her younger child. She also raises the suggestion that her parents should be assessed for possible placement with them, although there is no formal application with regard to that and indeed no application by the maternal grandparents themselves. From what I understand of the situation, despite some difficulties last year, Family Time is now taking place with all three children. From what I understand, the Mother is now in agreement with that. I see from the social work statement that it takes place six times per annum at a CH Park and I understand that that contact remains supervised. There was some correspondence as to the mother formally withdrawing her application before the court; however, no such application has formerly been made. The mother has not attended today to present a positive case as to her applications, it may well be because she is now happy with the current outcome. That seems to be what is now being suggested. The guardian is of the view that, in any event, any application to discharge the care orders is premature, but accepts that there needs to be a clear pathway for the development of contact, which now seems to be taking place. I note that in particular SH has presented with some behavioural difficulties, which of course needs to be carefully managed. However, I note that contact is taking place and the girls are happy with that and have met their other sibling as well. In light of all this and Mother's non-attendance today, both applications are formally dismissed. I am now required to deal with an application pursuant to S 91(14) of the Children Act whereupon it is proposed that the mother should not be allowed to raise any further application in relation to these children for a period of two years without first seeking permission of the court, on the basis of enabling the children to have some stability. I S 91(14) of the Children Act says: "Upon disposing of any application for an order under this Act.......... whereupon the court can direct that no application for an order under this Act of any specified kind may be made with respect to any child or children by any person named without first seeking the permission of the court". This section is more often used when considering private law proceedings pursuant to section 8 of the Act. However, the section refers to "Any application" and therefore includes such applications as pursuant to S 34, albeit of course S 34 is itself subject to a restriction by way of S 91(17) which states that: "Where a person has made an application for an order under section 34 and the application has been refused, and a period of less than six months has elapsed since the refusal, that person may not make a further application for such an order with respect to the same child unless they have obtained the permission of the court". So in so far as S34 is concerned, there is already an in-built leave provision. In determining whether or not that provision should be extended by a further period, I need to take on board the fact that there is such a self-contained section. There is a similar provision in relation to an application to discharge a care order under S 39 namely S 91(15). Theoretically, the section could also be used to prevent a local authority from pursuing protective steps by way of future applications pursuant to S 31, although it is difficult to imagine circumstances in which such a provision would be justified. In light of the application now before the court for a S 91(14) direction, I have to give it due consideration. Re P (S 91(14) guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573 states that S 91(14) should be read in conjunction with S 1 (1) which makes the welfare of the child of paramount consideration: "The power to restrict applications is discretionary and the court has to weigh in the balance all the relevant circumstances. An important consideration is that to impose a restriction is a statutory intrusion to the right of a party to bring proceedings before the court and to be heard in matters affecting their child. The power is therefore to be used with great care and sparingly, the exception not the rule. It is generally to be seen as a useful weapon of last resort in cases of repeated and unreasonable applications. In suitable circumstances the court may impose such a restriction in cases where the welfare of the child requires it, although there is no past history of making unreasonable applications. In light of that the court will need to be satisfied first that the facts go beyond the commonly-encountered need for a time to settle to a regime ordered by the court and the all-too-common situation where there is animosity. Secondly, that there is a serious risk that without the imposition of the restriction the child or the primary carers will be subject to an unacceptable strain". A court can impose such a restriction upon request from any of the parties subject, of course, to the rules of natural justice, such as an opportunity for the affected party to be heard on the point. I note that the guardian in their position statement raises this issue. Mother is not here today and therefore I am happy to consider it rather than have the matter adjourned off. Although such a restriction may be imposed with or without limitation of time, the latter is usually extremely rare and should be considered the exception rather than the rule. The degree of restriction, should be proportionate to the harm it is intended to avoid, therefore the court imposing the restriction should carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained and the duration of the order. It is most undesirable in all but the most exceptional cases to make such order without notice. I regard this application as not being without notice given what I have said above. The case of Re A (A Child) (Supervised Contact) (S91(14) Children Act 1989) [2021] EWCA 1749 provides that there is considerable scope for the greater use of these orders to protect children's interests. The court's jurisdiction is not limited to cases where a party has made excessive applications, but extends to the situation where a party's overall conduct merits intervention. The guidelines do not say themselves that S 91(14) orders should only be made in exceptional circumstances. Of importance is the fact that such an order is only a filter. The Domestic Abuse Act 2021, S 67 supports the court's modern approach to S 91(14) and in particular gives statutory effect of permitting such an order to be made where an application would place a parent or child at risk of physical or emotional harm. A helpful summary was provided in the case of Re F (Children) [2023] EWFC 212 . It reiterates that the provision does not apply to exceptional cases. The order is a protective filter not a bar. It is a discretionary order and there are many varied circumstances in which it may be appropriate, including those whether further applications would put the child concerned or children concerned at risk of harm, without the need to find the risk to be serious or the likely harm to be significant or serious. Of course, if the court makes an order it must consider its duration. Any term imposed should be proportionate to the harm the court is seeking to avoid and in relation to which decision the court must explain its reasons. The court must also consider whether the order should apply to all or only certain types of applications under the Children Act and whether service of any subsequent application for permission should be prohibited pending initial judicial determination of that application. In all of this, the welfare of the child is paramount. That said, any interference with a parent's otherwise unfettered right of access to the court, including the duration of any such prohibition pending permission, must be proportionate to the harm that the court is seeking to avoid. However, I repeat, a S 91(14) order is a filter not a bar. If the applicant can show the judge that there is a real change of circumstances then they should be permitted to make a fresh application (see Griffiths v Kniveton & XX [2024] EWHC 199 ) Having considered the issues in this case, and both Sections 34 and 39, which both contain automatic restrictions in relation to further applications within six months, and the court being invited to consider whether by the mechanism of S 91(14) I should consider extending that; It appears to me that the three girls have just commenced contact with their mother, which is positive. There is a plan in relation to its progression and a schedule in relation to that contained within the social work statement. Accordingly, I am of the view that any application within the next twelve months, and certainly after six months, would negatively impact on the stability of the children and would not be in their best interests. There needs to be a proven track record of positive contact before any consideration should be given as to its future progression. In my view that needs a minimum period of twelve months. That would provide effectively six contacts. As I have indicated, this is not a bar in relation to future applications, it is a filter. If the contact prior to the twelve-month expiry is positive and it is in the children's best interests, then it can be extended, with or without an application. However, I do believe that an appropriate direction under S 91(14) in respect of S34 of the Act for a period of twelve months is proportionate, which is six months more than provided for in S 91(17). I now turn to the issue of the discharge of the care orders pursuant to S 39. In my view, the Mother's application is wholly premature based solely as it is upon the successful outcome in relation to the proceedings for her younger child, which I believe has only recently been concluded. Caring for three children on top of her young child, particularly given the fact that they are in separate placements due to SH's presenting difficulties, is no mean feat. For the reasons that I have outlined, I believe that a S 91(14) prohibition for twelve months should also apply in relation to S39 of the Act notwithstanding the automatic provisions of S 91(15) for the same reasons as eluded to above. That is my judgment. om BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII