Frequent Applications in Child Proceedings

Frequent Applications in Child Proceedings

5th October 2018

I have recently found that for some reason, child proceedings which have started many years ago, keep returning to Court. Recently I had a case where we managed to agree a Final Order at the First Hearing which the parties were really pleased with, the Court supported it, along with CAFCASS and it was clearly in the best interests of the child.  However, mother is now stopping contact for no other reason than what she has already argued in the past and father feels he now has to bring enforcement proceedings because she is breaching the Order.

In that situation, the Court is not going to tolerate mother withholding contact for the same reasons that she has argued before.  Unless there are any other safeguarding concerns in place, father should be having contact and hopefully we will be able to sort that matter out shortly, but it begs the question, what happens when there are numerous breaches and the matter goes before the Court time and time again, which is only going to have a detrimental effect on the children involved in the case?

 

It is worthwhile noting that the Court can order under Section 91(14) of the Children Act 1989 that there is a bar to the parties bringing this matter before the Court.  Obviously, stopping somebody from making an application carries a very harsh test as you are in effect barring somebody from exercising their legal rights.  If there has been a genuine and substantial change in the circumstances that underlay the Barring Order, permission may well be granted for the application to be made, but what we have to consider is the following:-

  1. The welfare of the child is the paramount consideration;
  2. The Court’s power is discretionary;
  3. Making such an Order is an intrusion into the unrestricted rights of the party to bring proceedings;
  4. The power is the exception, not the rule;
  5. It is a weapon of last resort to prevent repeated and unreasonable applications;
  6. An Order can be made if it is in the interests of the welfare of the child, even if no previous applications have been made by the parents – if so, then the facts need to be beyond the usual circumstances and there must be a serious reason if the Order is not made, that the children will be exposed to unacceptable strain; hence why a Court may impose the restriction on making applications in the absence of a request from any of the parties, subject to the rules of natural justice;
  7. A restriction may be imposed with or without limitation of time;
  8. The degree of restriction should be proportionate to the harm it is intended to avoid and the Court should specify, where appropriate, the type of application to be restrained and the duration of the Order;
  9. It will be undesirable, in other than the most exceptional cases, to make the Order Ex Parte which means without a party being present at the Hearing.

In summary, the power to order these Barring Orders are used sparingly and must be proportionate to the harm that it seeks to prevent, but if someone seems intent on making repeated applications, CAFCASS will recommend it or the Court will order it of its own volition.  Whilst it can be seen to be breaching someone’s right to a fair trial under Article 6 (1) of the Human Rights Act of the European Convention on human rights, as the children’s rights are most paramount here, there are some circumstances that it seems the only way, so it is worth considering if you feel that this matter has been brought before the Court too many times.

 

Usually, these Orders are restricted for a number of years and it is rare that they are indefinite, for obvious reasons.  But we have to consider the history of the case, the risk of harm to the child and whether a change of circumstances has occurred since the last Hearing that would warrant a grant of permission, allowing someone to apply for this Barring Order. So every case is different as in most child cases and if you believe a Section 91(14) Order needs to be considered, then we are more than happy to advise you on the same.

 

Melanie Davis

Family Solicitor, Matrimonial

 

About the solicitor

Melanie Davis is a family law solicitor at Brindley Twist Tafft & James in Coventry.  She is widely known for her experience in child and divorce cases.  Originally qualified as a barrister, Melanie has excellent advocacy, negotiation and communication skills and enjoys fighting for her clients at court in all areas of family law.