Access to the court is a basic right enjoyed by all including, of course, parents who require the court to resolve disputes over arrangements for their children. Accordingly, restricting that right is a very serious step, which should only be taken in exceptional circumstances.
Regular readers of this blog may be aware of a provision tucked away in a sub-section towards the end of the Children Act 1989. Section 91(14) provides that:
“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.”
Section 91(14) orders are often referred to as ‘barring orders’, although technically they do not actually bar a parent from making further applications – they merely provide a further hurdle or ‘filter’ that must be passed by the parent before they can proceed with their application. The orders are usually made in cases that have a long history of litigation, and their rationale is that the case has reached the point where it would be best for all concerned, particularly the child, if there were to be a break in the litigation. Accordingly, any new application will generally only be allowed to proceed if it is considered to be absolutely necessary, in the interests of the child.
Barring orders are usually made for a set period of time. As one might imagine, once a barring order has been made it can be very difficult for a parent to persuade the court to entertain a further application before that period has expired. Barring orders are therefore a serious restriction upon the right of the parent to have access to the court, and they should therefore only be made sparingly, and after full and proper consideration.
Sometimes, however, the court can get it wrong, perhaps being too eager to protect the child from the harmful effect of further litigation. The recent case N (Children) was an example of the court getting it wrong.
The case concerned two children, now aged eight and seven. By the time the case reached the Court of Appeal this month, their parents had been involved in litigation concerning them for nearly five years. That litigation had begun in September 2014, when the mother applied for a child arrangements order, a non-molestation order and a prohibited steps order. In January 2015, the father pleaded guilty to an offence of harassment by sending abusive text messages to the mother, and was subsequently sentenced to a six-month community order. In March 2016, at what was intended to be a final hearing, the court made a child arrangements order, providing that the children lived the mother but had overnight and holiday contact with the father.
But that was far from the final hearing. The mother applied to vary the contact, and since July 2016 the father has had supervised visiting contact only. Another ‘final’ hearing took place in March 2017, at the conclusion of which the judge made an order confirming the child arrangements, including the order for supervised contact. The father appealed. His appeal was dismissed, but the judge also gave directions for the case to proceed, after the parents agreed to undergo a psychological assessment.
The assessment was carried out by a clinical psychologist, who had no concerns about the mother, but found that the father suffered from serious anger management problems.
The matter went back to the court for a directions hearing in March 2018. The father did not attend, and the hearing proceeded in his absence. The judge, Mr Justice Hayden, decided of his own volition that it was appropriate to make a barring order for two years, although he gave the father a month in which he could apply to vary the order. The father did apply, and a further hearing took place in July 2018. The father, representing himself, did not properly prepare for this hearing, although he produced a report from a chartered consultant counselling psychologist, who found no evidence that the father suffered from emotional distress outside the context of missing his children and frustration with the legal system. The judge found the report inadequate in various respects, and summarily refused the application.
The father then appealed against both the barring order and the order made in July 2018. The appeal was heard by the Court of Appeal this month, Lord Justice Baker giving the leading judgment.
Lord Justice Baker said that he understood the judge’s anxiety that the ongoing proceedings were not serving any benefit, and were risking further harm to the children’s welfare. However, the barring order should not have been made without giving the father an opportunity to make representations as to it. If the order had been properly made then it might have been appropriate to have dealt with the father’s subsequent variation application in a summary fashion. However, in the light of the irregularities in the way in which the barring order was made, the summary dismissal of the father’s application was “plainly wrong”.
Lord Justice Baker concluded:
“I regret to say … that the two hearings together represent an unwarranted infringement of the father’s rights to a fair hearing. His automatic right of access to the court was removed without notice and without giving him a proper opportunity to make representations. When he attempted to exercise the liberty to apply to vary that order, his application was misunderstood by the court and dismissed. I reach this conclusion with considerable reluctance, given Hayden J’s great experience and the strong sense of his concern for the children which emerges from the transcripts. His assessment that the ongoing proceedings were serving no purpose and not benefitting the children may well have been right. But before imposing an order under s.91(14), there are certain procedural steps which should have been followed but which were unfortunately overlooked in this case.”
Accordingly, the father’s appeal was allowed, and the barring order was set aside. The case was remitted back to the court below, for a further hearing before a different judge.
You can read the full judgment here.