Child law

How can I stop my ex from making constant applications in relation to our children?

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Walker Family Law
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How can I stop my ex from making constant applications in relation to our children?

When parents separate the most important issue in their lives is the arrangements for their children. They want what they believe is best for their children, no matter what anyone else believes. Whilst this may be natural, it can lead to their efforts to achieve what they want becoming all-consuming, to the detriment of the very people they are seeking to protect: their children.

All experienced family lawyers will have come across the scenario whereby a parent refuses to accept the decisions of the family court regarding their children, and engages in continual litigation over arrangements for the children, making repeated applications to the court, often over a period of years. Obviously, this will be extremely stressful for the other parent, but it can also result in the children themselves suffering serious harm.

So what can be done to prevent a parent making repeated applications to the court in relation to their children?

Barring orders

The answer is to ask the court to make a barring order (often referred to as a section 91(14) order, that being the section in the Children Act that gives the court the power to make the order).

A barring order is an order that no application for a further children order may be made with respect to a child by any person named in the order (i.e. the other parent), without the permission of the court.

Barring orders can be made at the end of a children case, either on the application of a party, or simply because the court considers that such an order is appropriate.

The barring order can relate to all children applications, or just to applications of a particular type, such as applications for child arrangements orders.

A barring order can be made against one or both of the parties, and will usually last for a specified period of time.

If a barring order is made against a party, that party cannot make any further application of the type specified in the order without first applying for, and obtaining, permission from the court.

The exception not the rule

Obviously, everyone normally has the right to make any application to a court that they wish. Taking away that right is a serious matter, and therefore barring orders are only made in limited circumstances.

Accordingly, the court has come up with a number of guidelines for the making of barring orders. They include the following:

1. When deciding whether to make a barring order the court must have the welfare of the child as its paramount consideration. (A court may even make a barring order where there is no past history of making unreasonable applications, if it believes that the welfare of the child requires it.)

2. Because it intrudes upon the right of a party to bring proceedings before the court and to be heard in matters affecting their children, the power to make barring orders is “to be used with great care and sparingly, the exception and not the rule.”

3. Barring orders are generally to be seen as a useful weapon of last resort, in cases of repeated and unreasonable applications.

4. Barring orders can be made with or without limitation of time although, as indicated above, an unlimited barring order would be unusual.

5.  Lastly, the degree of restriction should be proportionate to the harm it is intended to avoid. Accordingly, 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.

In addition to the above, earlier this year the Domestic Abuse Act 2021 was passed, which includes a further provision about barring orders. The provision is not yet in effect, but will say that the circumstances in which the court may make an order include, among others, where the court is satisfied that the making of an application for a children order of a kind specified in the barring order would put the child concerned, or another individual, at risk of harm. It will also state that where a person who is named in a barring order applies for permission to make an application of a specified kind, the court must, in determining whether to grant permission, consider whether there has been a material change of circumstances since the order was made.