For many former couples, it is possible to avoid the stress and expense of litigation by sorting out a solution to their differences about children’s arrangements through mediation, collaborative law or good old-fashioned negotiation. For others, litigation can be a bruising but time-limited ordeal, which ends in an order imposed by the judge, which all parties then abide by. Yet there are some cases that seemingly never end. One of the problems in making arrangements for children is that they will grow up and change, and their routines usually need to adapt too, meaning that trying to find finality in children’s matters is often an illusion. The required flexibility can be exploited by separated parents who are unsatisfied by the decisions of the court on earlier occasions, and seek to return their children’s arrangements to court for determination again and again until they get a decision with which they agree.
What can be done for cases that return to court time and time again? If the court considers that the litigation is without merit, is being pursued to punish or harass the other parent, or is harmful to the children’s welfare, then it can impose a ‘permission’ hurdle on any further applications, meaning that the other parent and the children are not troubled by further litigation unnecessarily. The court takes a screening role and will not let the application progress unless it thinks there is a valid reason to do so. We take a brief look at that procedure in this blog.
The order we’re talking about is an order under Section 91(14) of the Children Act 1989, which acts as a hurdle to further applications to court being made in respect of the children in the particular case as it requires a permission hearing each time the parent makes an application. These orders are considered fairly draconian in nature, but they are not uncommon and the court will use one if it considers that continued litigation is harming the children or being pursued for the wrong reasons. They can be used as an order of last resort when there have been repeated and unreasonable applications made by one or both parties. A court can impose a s91(14) order without being asked to do so, but it is usual for one party to have applied for it in the face of constant applications made by the other and endless court hearing arising from those applications. The barring order will last for a specified time, often a fixed period of years or until the children reach a certain age.
A couple of recent cases serve to illustrate the use of these orders.
Towards the end of last year the Court of Appeal released its decision in F (Children). In that case, the parents agreed arrangements for their two children which were set out in a consent order – the children were living with mum, and seeing dad regularly. A few days after the order was made the father claimed the order had been breached and applied for a residence order to have the children live with him instead. Litigation then continued and worsened with allegations made by both parents about the other’s care of the children. The effect on the children was so bad that one was taken into care and refused to see his father, then the other also stopped seeing his father altogether; yet still the litigation continued, with the father again seeking a residence order. When the court refused, he appealed. The court tried to end the litigation by making a barring order under section 91(14) until the children reached the age of 18. The father appealed this decision to the Court of Appeal, but was not granted permission to appeal this element of the decision, which was found to have been properly imposed. The judgment makes sobering reading for all parents involved in litigation about children (as do the cases we looked at last week).
In the other case, K v K the President of the Family Division looked at yet another sad tale. Here the daughter was in her late teens and did not want to have contact with her father, so none was ordered, and the father’s application for residence of his son (now 16) was dismissed as the court took account of the boy’s views. The father appealed, unsuccessfully. Undaunted he returned the matter to court and was granted a shared residence order relating to his son, with the unusual feature that the son was to determine his day to day living arrangements. The father made further applications, in the process being defamatory about the judges handling the case – which is never a good idea. His applications were dismissed. So he made more, including attempting to have the mother committed to prison for perjury, an application he later withdrew. The President went through all the paperwork and was clear that the numerous applications the father was making were in reality an attempt to reopen matters which had already been decided against him. He felt there was a clear need for a continuing barring order to stop that father’s incessant litigation about the children, and even went so far as to make a highly unusual corresponding order in financial proceedings, and reserving the case to himself should the father try to make yet more court applications.
In both these cases the damage caused to the children, and to the adults who care for them, was severe. The message is that incessant litigation is not the answer to resolving arrangements for children, and courts will put a stop to it.
It can be really hard, especially if you feel you have been wronged by your former partner or the court, to move on and look to the future. The interests of children are not best met by endless aggressive and damaging litigation. Legal advice can be a huge help in getting an objective, realistic handle on the situation: in both the above cases the fathers did not have legal representation, so perhaps did not have realistic expectations of the process and its likely outcomes.
If you would like to talk to us about any aspect of family law, do get in touch with Tricia, Gail, Adam, Simon or Sue on 01223 443333 for an appointment.