One of the tasks of the new review of family courts and domestic abuse announced last month by the MoJ is to examine courts’ use of barring orders.
(By the way, we don’t know when the three months for the review starts, although we are now three weeks in from the announcement.)
We don’t think that judges agree that these types of order should actually be called ‘barring orders’ because they aren’t a total bar to anything, as we explain below. And see this explainer by our Chair, Lucy Reed, way back in 2011.
What can we learn about ‘barring orders’ from recent court decisions?
Section 91(14) of the Children Act 1989 says:
On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court.
In other words, when a court makes a final order in a Children Act application, it can (whether requested or not) add another order stopping specific people from makng more applications about that child for a fixed period, unles they first get permssion from the court. The purpose is to stop repeated court actions that are not in the child’s welfare – but obviously such a ‘bar’ must be imposed very sparingly. Denying someone access to court can only justified in exceptional circumstances.
But should courts be doing more to stop vulnerable parents and chidren being harrassed through the family courts with repeated and malicious court applications? This is what has been suggested in the discussions around the Victoria Derbyshire programme.
There are two Court of Appeal judgments published on s 91(14) this year. In one, Re N [2019] EWCA Civ 903, the court allowed the father’s appeal against a s 91(14) order, because of procedural irregularity. You can read about the details of this case in Sophie Smith Holland’s recent post. The case involved evidence of domestic abuse.
In the other Court of Appeal case, Re G [2019} EWCA Civ 548 , a three year bar against a father was upheld. The father had issued 56 applications over three years, and there had been about 30 hearings across 40 days. HHJ Handley, in the Family Court, had had to make more than 50 orders in response to the father’s continual applications. Lord Justice Peter Jackson in the Court of Appeal agreed with the judge that the mother and children were entitled to protection from incessant litigation; the length of the order was not inconsistent with the possibility of a therapeutic approach to the restoration of contact. No findings of domestic abuse had been made in the case, but the father’s attitude was such that the children would suffer emotional harm if they were placed with him or forced to have direct contact, and he had completely lost sight of their welfare. The father claimed ‘parental alienation’ by the mother but HHJ Handley had:
… summarised the Guardian’s opinion that there was no evidence to support the father’s allegations of parental alienation but clear evidence that he had a preoccupation with ongoing litigation. The Judge found the Guardian’s evidence to be balanced and measured and his recommendations to have been carefully considered, well-reasoned and supported by the evidence. [para 30]
The guardian had recommended the s 91(14) order.
Both judgments refer to a case in 1999, Re P (A Minor) (Residence Order: Child’s Welfare) [2000] Fam. 15; [1999] 3 W.L.R. 1164; [1999] 3 All E.R. 734 as the authority for making decisions about s 91(14). This is not on BAILII. In Re P, Lady Butler-Sloss said:
(1) Section 91(14) should be read in conjunction with section 1(1), which makes the welfare of the child the paramount consideration.
(2) The power to restrict applications to the court is discretionary and in the exercise of its discretion the court must weigh in the balance all the relevant circumstances.
(3) An important consideration is that to impose a restriction is a statutory intrusion into the right of a party to bring proceedings before the court and to be heard in matters affecting his/her child.
(4) The power is therefore to be used with great care and sparingly, the exception and not the rule.
(5) It is generally to be seen as a useful weapon of last resort in cases of repeated and unreasonable applications.
(6) In suitable circumstances (and on clear evidence), a court may impose the leave restriction in cases where the welfare of the child requires it, although there is no past history of making unreasonable applications.
(7) In cases under paragraph 6 above, 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 between the adults in dispute or between the local authority and the family and secondly that there is a serious risk that, without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain.
(8) A court may impose the restriction on making applications in the absence of a request from any of the parties, subject, of course, to the rules of natural justice such as an opportunity for the parties to be heard on the point.
(9) A restriction may be imposed with or without limitation of time.
(10) 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.
(11) It would be undesirable in other than the most exceptional cases to make the order ex parte (This means: without notice to the other side).
There is also an interesting recent High Court case on BAILII, Re P v N [2019] EWHC 421 (Fam) where Mr Justice Cobb granted a mother’s appeal against an order for contact that had been granted to a father, although a s 91(14) order was in force at the time, and the mother had not been given notice of his new application nor had a chance to respond. The history of this case included findings that the father had acted inappropriately throughout the court hearing, using foul and extremely abusive language towards the mother’s barrister and towards the judge, that the father ‘did not desist from using foul language when warned of the risk of contempt’ and that he had to be removed from the court by security staff. Furthermore, for extended periods of time, the father has been subject to a non-molestation orders to protect the mother and children. [para 20]
From this very brief overview of a few recent cases, it would seem that more consistent use of s 91(14) would be welcome.
Image – Thanks to Mabel Amber on Pixabay