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How can I stop my ex-partner making continuous applications to the family court?

View profile for Emma Roberts
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The court often sees parents make repeated applications in relation to their children, not because they believe that those applications are in the child’s interest, but because they use the repeated applications as a continuous form of control, whether this is intentional or not. Prolonged court proceedings can become highly stressful and can significantly impact upon the welfare of the child and parent who the child lives with, particularly if they have been a victim of domestic abuse.

If the same outcome is being reached at the end of each set of proceedings, it may be necessary for the parent who is not making the applications to consider making an application to the court to consider preventing a parent from making further applications for a period of time.

What is a barring order?

A barring order, known as a Section 91(14) Order, allows the court to bar or restrict a further application being made, by a person who holds parental responsibility, without the court first granting permission for the application to be made.

This section of the Children’s Act 1989 does not specifically state in what situations the court can make a barring order. However, the court always has to consider the ‘welfare checklist’ at section 1(1), which states that the child’s welfare shall be the court’s paramount consideration.

It is important to remember that a S91(14) order is not an absolute bar to a party making an application to the court. In reality, an application can still be made but only after the party has the courts permission. When deciding whether to grant permission, the court will consider whether the application has merit, any material changes in circumstances since the last application, the history of the case, the risk of potential harm to the child or the person the child lives with of permission being granted and the need for a period of stability.

The law

In the case of Re P (A Minor)(Residence Order: Child’s Welfare) [2000] Fam 15; [1999] 2 FLR 573] the court made clear that their power to make barring orders is discretionary and can be made with or without time limits, should be used sparingly as a last resort to prevent unreasonable applications, and the court must carry out a balancing act between the welfare of the child and the right of unrestricted access of the litigant to the court and should be proportionate to the harm the order is intended to avoid.  

Historically, these orders were used relatively rarely. However, it has recently been recognised that parties making successive applications to the court could be part of a pattern of coercive control against their ex-partner. In the recent case of Re A [2021] EXCA Civ 174, Lady Justice King said 

‘In my judgement in many cases, but particularly in those cases where the judge forms the view that the type of behaviour indulged in by one of the parents amounts to ‘lawfare’, that is to say the use of the court proceedings as a weapon of conflict, the court may feel significantly less reluctance than has been the case hitherto, before stepping in to provide by the making of an order under s91(14), protection for a parent from what is in effect, a form of coercive control on their former partner’s part.

The guidelines in Re P 1999 should now be applied with the above matters in mind and in my judgement the prolific use of social media and emails in the modern world may well mean that orders made under s91(14) need to be used more often in those cases where the litigation in question is causing either directly or indirectly, real harm.” [paras 41-42]’

S67 of the Domestic Abuse Act 2021 inserted a new section 91A into the Children Act 1989 which provides for the court to make a s91(14) order in circumstances where the court is satisfied that an application for an order relating to children would put the child concerned or another individual (“the relevant individual”) at risk of harm. Harm here means ill-treatment or the impairment of physical or mental health. 

As well as this, a new Practice Direction 12Q was introduced in May 2022 setting out the procedure of making an application but importantly the key principles of these types of order:

2.1 Section 91(14) orders are available to prevent a person from making future applications under the 1989 Act without leave of the court. They are a protective filter made by the court, in the interests of children.

2.2The court has a discretion to determine the circumstances in which an order would be appropriate. These circumstances may be many and varied. They include circumstances where an application would put the child concerned, or another individual, at risk of harm (as provided in section 91A), such as psychological or emotional harm. The welfare of the child is paramount.

2.7 Section 91(14) orders are a protective filter – not a bar on applications – and there is considerable scope for their use in appropriate cases. Proceedings under the 1989 Act should not be used as a means of harassment or coercive control, or further abuse against a victim of domestic abuse or other person, and the court should therefore give due consideration to whether a future application would have such an impact.

The key message here is that court proceedings under the Children Act 1989 should not be used as a means of coercive control or further abuse against victims.

How do I make an application?

A formal application should be made to the court for a Section 91(14) Order. The other party against whom the order is sought should be given notice of such application. The court will them determine whether such an order is necessary and paramount to the child's welfare and if it is, how long the order should be made for. The court will not usually deal with any applications which are made without proper notice, particularly where the person who the order is sought against does not have legal advice.

In some exceptional cases, the court can make such an order of its own motion if it considers it necessary to the child’s welfare, without either parent making an application.

It is important that you access legal advice if you are considering making this application. Our award winning national team of family and children law solicitors are here to help you. Call us on 0161 696 6193 if you require advice or assistance.