Barring orders and the guidelines for making them

Family Law|November 28th 2016

I wrote here the other day about the phenomenon of the obsessive litigant. In the case to which I referred in that post the proceedings were in the Court of Protection and the sanction the court used to restrict the obsessive litigant from making repeated applications was the civil restraint order, which required the litigant to first obtain the permission of the court, before he could make any further applications. However, in relation to children applications the court has a different, but similar, tool at its disposal to prevent repeated applications: the section 91(14) order, also known as the ‘barring order’.

That section number refers to the Children Act 1989. Section 91(14) reads:

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.

As I indicated, the idea behind section 91(14) is similar to the idea behind the civil restraint order. However, here the court is of course not just concerned with protecting itself and the other parties from incessant litigation. It is also concerned with the welfare of the child or children involved in the case. In fact, the welfare of the child is the court’s paramount consideration, and this is really what distinguishes section 91(14) from the civil restraint order.

A substantial body of law has grown up around section 91(14), as the courts have regularly dealt with cases involving the provision – see, for example, this case that I wrote about in February. However, the leading case remains a Court of Appeal decision from 1999, Re P (A Child), in which Lady Justice Butler-Sloss set out guidelines for the use of section 91(14), which still apply today.

Those guidelines are as follows:

1. As mentioned above, the welfare of the child is the paramount consideration.

2. The court has a discretion whether or not to make a barring order, and must weigh in the balance all the relevant circumstances.

3. To impose a restriction is an intrusion into the right of a party to bring proceedings before the court and to be heard in matters affecting his/her child. The power is therefore to be used with great care and sparingly. Accordingly, it should be the exception, and not the rule.

4. Barring orders are generally to be seen as a useful ‘weapon of last resort’, to prevent repeated and unreasonable applications.

5. In ‘suitable circumstances’ a court may make an order even though there is no past history of making unreasonable applications, if the welfare of the child requires it. In such cases the court will need to be satisfied that the facts go beyond the ‘usual’ and 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.

6. Section 91(14) orders can be made upon the application of one of the parties, but they can also be made without any such application, if the court thinks it appropriate. In such cases the parties should be given an opportunity to be heard on the point.

7. A restriction may be imposed with or without limitation of time. However, most orders are specified to last for a certain period, such as two years from the date of the order.

8. The degree of restriction should be proportionate to the harm it is intended to avoid. The court should therefore carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained (e.g. applications to vary arrangements for the child, such as how much contact the child should have with a parent) and the duration of the order.

9. Lastly, it would be undesirable in other than the most exceptional cases to make the order ex parte. In other words, an order should not usually be made against a party without first giving them the right to be heard.

Photo by TheGabeC via Flickr under a Creative Commons licence.

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Comments(4)

  1. Andrew says:

    Presumably a barring order made ex parte. Plus be the subject of an application inter partes to set it aside?

  2. The Devil's Advocate says:

    Barr!!!! to Baring Order. Stuff and Nonsense.

    This is a general response to the sad indictment of known alienating criminals who use anachronistic sections of Devil Laws [CA 89], (Barring Order to continue to perpetuate their crimes) only to be allowed to continue their psychological rape – opps, that naughty word we in our society believe only to be a physical form of abuse., yes so much hot in the news to really deflect from the debacle going on in our society….Such a perversion needs a societal response.

    Thank goodness you have retired. Because again dear John you have really gone Donny Tiny Hand Trump…..but in your case you will be reeling back your comments in the not too distant future and I know why and you did miss Victoria Derbyshire’s programme last Monday BBC 2, (21/11/16) didn’t you??? Come on you didn’t see the comment put up for millions of viewers to see? Did you notice the Mexican Legislature and the custodial sentencing imposed on criminal alienators. Oh no John you weren’t hiding your eyes or hiding behind the couch or were heard to run screaming out of the room! Yes you are now corrected, Alienation in Mexico is not only a crime but a serious criminal offence with custodial sentences of up to 15 years per child, which in many cases is equivalent to second degree murder in England and Wales!!!!!!!!!!!!!!!!!!!!! Have you heard of this term. Your colleagues may have dropped you a note before you retired, “implacably hostile parent”…Yes, no????

    You see John rather than blindly accepting this programmes embryonic tsunami which is to sweep like a 100meter wave across Europe (it has also hit Brazil, Mexico and Italy…the straights of Gibraltar are not narrow enough to prevent its access metaphorically speaking). Yes John it is coming be sure as Donny Tiny Hand Trump and his attitude to climate meltdown is to build more rowing boats.

    You made interesting but sadly and as usual comments to support the years when you were an advocate and were incapable of developing an evolution of mature and responsible action to change legislation to enhance family life, No you could not do this could you….Legal Aid, your bread and butter for the main. Yes and you know it is still there for those fighting to promote more alienation…Oh dear John…it may be a good thing that you have retired. Through the anarchic dinosaur of family legislation which like a great deal of your professional life in this “necrotic society of haves and sod the rest of you…” have had to suffer like the “slings and arrows of outrageous fortune”;(Good old Bard) After all these years and you must be proud of yourself in helping to perpetuate those parents who alienate. I bet you are proud of yourself….and then you write a load of cods wallop in regard to “rights” being denied a parent, because it is not in the best interest of a child. Oh dear please address the next paragraph with responsibility.

    Dr. Craig Childress please allow John to join your foundation class in child psychology beginning with Jean Piaget’s classic interpretation…but alas will it be falling on to a deaf mind in your case John yes? Let alone his seminal work on psychotic mutations of the narcissist’s mind…Too deep for you John? Let me give you a hint, what words can we use for you to refresh your memory about the manner of associating parental and family alienation with DSM5 psychoses? Well I am sure Dr. Childress and Dr. Weir and hundreds of the world’s most renowned professionals in this field will enlighten you. Would you like me to tell you a story (no not one by Max Bygraves)??? Because you are going to get one on a slight variation.

    You really don’t get it do you John? Because you don’t have too. Mind you it is better for the Legal System to promote aspects of disparate interpretation of the Children’s Act 89 (yes that dreaded one all you legal beagles love…wringing your hands for free lolly from the Cash Cow you so desperately need to milk as long as there is a way)….And um….. Oh I wont give a long Guardian like story introduction which they promote wonderfully to introduce a topic of national importance. I don’t have the narrative skills nor time but there is only one short point in regard to this to declare.

    Where there are applications in the case of family law to action where the UN Committee on the Convention of the Rights of the Child attests in Section 9.3 and 10. (which our Government ratified in December 1991…do you remember) for the right to bond with your child (so my Samaritan clients inform me; I do have a good class of intelligentsia, aren’t I fortunate sometimes)? Where are such applications which we see in Family Courts. Of course we do not know because we are in a Guantanamo Bay situation with FC’s; they are held in secret, state laws are being leaked and there are not enough MI5 Operatives to ensure all Family Hearings are of not broadcast to society. That is why, John, the Nazi Courts taught us one aspect of law which we have imported from them; freedom to report (and please no crying into your organic Earl Grey tea …we know that family names are protected from common knowledge)…..so there we have it….

    Pathetic little sections of a Devil’s Law which on investigation from a colleague in the Fourth Estate illustrate how the new Tsunami Laws will be hitting the shores of this great nation and then the proverbial shit will be hitting the fan.

    But the next two questions which should be asking.
    1. Why did you at this time retire from your profession when the number of defending criminal counsellors for those perpetrating parental and family cohort alienation will be needed 100 times more than at present. (As a Samaritan I am able to enlighten you in one point of fact, If you thought you have seen angry parents baying at the corruption of the Court System, you have seen nothing of that of an angry Granny….V for Vendetta is like a tea party in comparison).
    2. Where are all the extra builders going to come from to build the extra prisons needed…(Legislation in retrospect to a child’s life prior to up to 16 years from the time alienation began) and there are an estimated 4 million such criminals free at this time to continue to rape our children’s minds of hatred and vitriol which if seen be society would….well I will let society decide…..15 years in the choky?????

    • El Campo says:

      Dear Mr I couldn’t have put it better myself. You read my mind. You just laid bare everything I know the family court to be. The secrecy and so call best interests of the child/children; the children are their so called paramount priority, so for and so on… when in reality they don’t even give a monkey arse about the actual well being of those children. What else to expect when you have these bunch of fraternity members with six figures salary processing human being like in a factory or assemble plants?
      whether or not they get their decisions right they still get paid… why bother to make sure it is right. they might as well do it blind folded…. which they do and also cover up the tracks and look after their owns. A bunch of bullies and sanctimonious hypocrites who care about lining up their pockets as long the so called system allow them to do so.

      • El Campo says:

        They don’t like or want to see their decision put into question. That’s their bread and butter. No wonder it is all done in secrecy. Legal aid serves who the most? Solicitors and court professionals.

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