What can I do if the other parent keeps making unfounded applications to the court relating to contact with our children?
5th October 2018
In some instances some parents make a number of unfounded applications to the Court relating to residence or contact with their children and parents will contact me to ask if there is anything they can do to prevent this happening.
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:-
- The welfare of the child is the paramount consideration;
- The Court’s power is discretionary;
- Making such an Order is an intrusion into the unrestricted rights of the party to bring proceedings;
- The power is the exception, not the rule;
- It is a weapon of last resort to prevent repeated and unreasonable applications;
- 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;
- A restriction may be imposed with or without limitation of time;
- 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;
- 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.