There is an application a parent can make to the court to request prevention of numerous applications without permission of the Court (or Leave as it is called).

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 may 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.

If you need any help, please contact our Family Law Solicitor, Samantha Chater, on 024 7653 1532 or samantha.chater@bttj.com

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In brief, barristers only see clients at court. They are typically the client’s mouthpiece at court, whereas solicitors are often more office-based, and handle the file without speaking on the client’s behalf at court. In broad terms, the solicitor prepares the case and the barrister presents it.

Where necessary, though, we solicitors typically try and represent clients at many court hearings. Not only can this be cheaper than engaging a barrister; it also ensures that a single person – who understands the file, and has had contact with you throughout – continues representing you and promoting your case at the highest level.

Divorce

In divorce proceedings, we instruct barristers (otherwise known as counsel) for final hearings. Unless the matter was agreed and the parties are simply arguing over one issue, barristers are best placed to argue your case more efficiently at a final hearing: they are in Court every day and know how the particular judges prefer arguments to be phrased – and indeed what the outcome is likely to be. Their specialist advice is invaluable.

We sometimes instruct barristers at other financial hearings if the matter is complex, but ordinarily it is more cost-effective for these to be carried out by solicitors.

Family Proceedings: When Do You Need A Barrister?

Child Proceedings

I often represent clients at child hearings. This includes the final hearing, especially ones based on submissions only. In other words, where a final hearing only hears lengthy and persuasive arguments from solicitors in order to determine the case, I will represent the client.

If the final hearing is a contested hearing, however, there wil be witnesses to be questioned. In these cases I advise instructing a barrister to question the witnesses as they have more experience in questioning – and in persuading the judge or magistrate to agree with their arguments.

If we deem it best to instruct a barrister to represent you, their fees can vary according to their level of seniority and the length of the hearing. I have contacts with many sets of chambers – the word we use to refer to the offices of barristers – and will guarantee that we instruct a barrister who will fit your budget.

I will represent most of my clients at court if possible and practicable and I pride myself on providing valuable service for clients. It can be cheaper if I represent you throughout, and this also allows for continuity and saves time and expense in briefing the barrister beforehand; but in some cases the barrister’s particular skills are essential.

So – it’s more than tomayto/tomahto. On the other hand, I qualified as a barrister originally – so sometimes it is about using a different word for the same person! The law, as you well know, is a complicated business. So if you require representation for any family matter, or simply need some advice, do feel free to reach me at our Coventry head office on 02476 531532.

Melanie Davis (née Timms)

Family Solicitor

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