Background
The idea of a parent being prevented from making an application to the Court seems surprising, if the Court is supposed to be a ‘last resort’ measure to litigate child arrangements. However, it is clear that there is a narrow but definitive area where a Section 91(14) bar must be used. Whether this is a cursory warning, or a mechanism in practice, sometimes the prevention of parents from relying on the Court is considered necessary.
In these proceedings, the paramount consideration is always a child (or children)’s welfare. However, repeated or maliciously motivated applications to the Court can become disruptive to a child’s welfare even if they are not present for the Hearings. Numerous applications can lead to uncertainty for the child’s routine (by the child and every party involved), take up significant amounts of Court time, accrue significant legal fees and cause problems for the Court’s power to make a ‘final’ Order if there is always an avenue to re-litigate.
As described within the Children Act (1989), Section 91(14) permits the Court to make a Barring Order where these cases arise. The direct effect is that any party to previous proceedings must apply to the Court for permission (which can be referred to as ‘leave’) first. The Court will then decide if the grounds are sufficient to reopen the case. This is different to normal proceedings, where the Court will respond to an application on paper and can tie parties into a timetable before any clarity on the grounds and/or responses.
Therefore, it is not correct to say that Section 91(14) universally prevents applications. Of course, there is the prospect of having permission denied, but parents do have an opportunity to present their case first.
Case Law
As a relatively rare provision (I have seen a total of four, in five years), there is limited case law explaining the practical consequences of the bar. In Re P (A Minor - Residence Order: Child’s Welfare) (1999) the Court of Appeal took the opportunity to consider a list of criteria for when a bar is likely to be applied.
It was emphasised firstly that this is an exception to the rule. The reality is that some parents will need more than one application for a reason that is not malicious or harmful. Common examples could be if a child significantly changes their wishes and feelings (and is of sufficient maturity for this to take priority), or if one parent were to relocate far enough that the arrangements were obsolete and impractical to commit to.
Further, Re P explained that the purpose of the bar was to protect the child primarily, but they did need to consider their duties towards all parties going through litigation that will be emotionally distressing and harmful. This is a balancing act, and the Court are often reluctant to consider the notion that a final Order has already run its course within a matter of months. Particularly where welfare concerns do not form part of an application, the Court are well within their rights to agree that no parties will benefit from returning to Court.
It was also explained that bars are appropriate if there is an ‘obsessive or harassing approach’ to relying on the Court, or where a relevant child is, or is likely to be, affected by repeat applications. My interpretation is that Re P has given a nod towards bars applying even for reasons that have nothing to do with a child. Even if the child is too young or not aware of proceedings, the Court can consider that applications are being made solely to cause distress, or as a tactic in a larger picture of general abuse. They do not have to evidence the impact on the child. The Court have made references to future welfare, and the reality of a child becoming more self-aware about proceedings if they are to grow up with parents who have only known litigation or a protracted attempt to ‘have the last word’.
Rationale
The main cases where the Court may consider the appropriateness of a bar, include where one parent is continuously making applications throughout the child’s life. Whether this is twice, or six times, will depend on the grounds and motivations for doing so. The Court do not often take kindly to revisiting historic issues that have been litigated, or parents using proceedings to air their dislikes about the other. Where applications appear to have no merit save for the intention of bringing the other parent back to Court, the
Court may consider a barring Order without several applications before it.
Barring Orders are more likely to be considered where there is a proven impact on a child through being subject to so many proceedings. Unfortunate examples can include where a child expresses distress at being spoken to by third parties such as CAFCASS and the local authority all the time, or does not know what a stable routine looks like. The
Court must take steps to prevent this from continuing unless there is a more serious risk of general harm.
However, it can simply be that a barring Order exists to prevent the usurping of a final decision. I have witnessed the Court’s deliberation over a barring Order even on the first set of proceedings, knowing how poorly the parents manage without assistance from third parties and wanting to ensure there is some permanence and attempt to engage in the final contact provisions.
Barring Orders have a high threshold and are generally limited on time (1-3 years is most common). This indicates that the Court are live to second applications having merit or becoming necessary. However, by mitigating impulsive or retaliatory applications, parents have a mandatory cooling off period. As Family practitioners see, the first few months after an Order is crucial. Parents are left to their own devices, and it is vital that the autonomy handed back to them is kept out of the Court’s remit where possible.
Summary
Generally, parents should expect to engage in Child Arrangements proceedings without the risk of a bar being implemented. Most cases proceed without the concept even being mentioned. Even where proceedings are protracted or highly contentious, or there are findings of abuse, this does not lead itself to an automatic bar, and this is not the default approach of the Court.
However, the existence of a barring Order in and of itself demonstrates that parents and the Court must work together. The Court will resolve the ‘headlines’ of what is disputed but they cannot be relied upon to manage co-parenting differences or general conflict. The Court is a practical solution, but not a long-term lifeline.
