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.