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What Are Barring Orders?

By: Elizabeth Mugan BA/BSc, PGDipLaw, BVC, CIArb - Updated: 29 Jan 2016 |
 
Barring Order Section 91(14) Law

A barring order is a court order to bar or prevent a claimant from making "vexatious" applications. The definition of vexatious is where a person brings action against someone without any winning argument and they simply want to cause frustration to the defendant.

The Law

Barring orders are outlined in Section 91(14) of the Children Act 1989. This is a judicial act which seems, all too often, to result in orders overturned on appeal and several issues about procedural fairness.

The effect of a barring order is to stop a litigant from making any further applications to the court. It is argued often that these orders are a draconian measure, one of which is sometimes a bar to fathers who are genuinely attempting to see their children, for example. In order to stop 'the bar' it is only a case of making an application to ask to make a further order. This will be granted if the applicant has a realistic reason for the order.

There are a number of recent authorities in which barring orders have been featured and subsequently overturned.

When and in What Circumstances Can You Make an Order?

Previous cases have made sure that the court should not make a barring order unless both parties have been given previous warning and have had an opportunity to argue their points about the order, particularly if they are litigants in person. There are many examples, where the court has been reluctant to grant these orders without carrying out proper procedure in the initial parts of legal action.

In one case, the judge set out some useful guidelines, which are still applicable today. In cases where there have been vexatious i.e. repeated and unreasonable applications, then a barring order is a last resort. However, in cases where the welfare of a child is at stake, an order might be granted if the potential court action would place too much pressure on the primary carer.

In another case in January 2010, the court declined to make a barring order. In this instance, there was a contact dispute involving evidence of parental alienation and the court made an order changing residence from the mother to the father. The mother had opposed any direct contact and sought a conclusion to proceedings and a barring order. As explained in a subsequent case, the attempt to change residence failed, and the child was returned to the mother under a residence order. At that stage all routes had been exhaustively explored and a barring order was made against both parents.

Duration and Terms of Order

Once granted, a barring order can be changed by the judge to reflect the circumstances of the case. The court must say how long the bar will last for, but this usually has a time frame. Indefinite orders require substantial reasoning as to why they are required for so long.

The order may apply to a number of judgements, or to particular aspects of a case.

In a 2010 case, a barring order was imposed five years in respect of contact with a three year old girl, alongside an order for indirect contact only. That was held to be an excessively long period given the child's age and was reduced to two years on appeal. The case raises no new point of principle, and indeed the judge was in part supportive of the appeal on the basis that the father had since become resident in the jurisdiction, and so there was no longer a geographical barrier to contact which had previously been as issue.

Permission

After a Section 91(14) has been granted, a person would need to gain permission to bring action to court. In this case, an application would be made to a court for the order to be lifted. This would be tested against a number of criteria to determine the outcome of the permission application.

The test on an application for permission is as set out in the case of Re A (Application for Leave) [1998] 1 FLR 1. The test is, does the application show any legal reason to take new evidence in front of the court? Quite simply, do you have any evidence to present to the court that could change the original ruling. The second test is, does the person under the order have a case to argue. A person must apply for permission with some point to argue, not simply to try again with the same argument as before. An example might be that parental responsibility was removed due to a persons living arrangements. If these changed to a more suitable situation, it could be argued that this is grounds to revisit the case. Courts have confirmed that to pass these tests, a person must show substantial arguments that their case is not hopeless.

The proper procedure to follow is to issue a C2 form, attaching a draft application and copies for service. The court will either grant the application on paper or will fix a hearing to determine it. The applicant is entitled to an oral hearing if he so requests.

A person will need first to explain how they have addressed the reasons that led to the original order being imposed. Sometimes, you might need to prove this change before a permission application is granted. This means that the court can decide what efforts the person has gone to to rectify their issues before creating stress for the opposing person by allowing a court hearing.

It is clear that a barring order is made in circumstances where a person is seen to be making both numerous and unreasonable family law applications. There has been a significant increase in attempts to finalise disputes in courts, to prevent long-standing disputes, which can disrupt family lives. Therefore, many examples of barring orders are diminishing where a judge has been has been too harsh or has ignored human rights in the main applications.

In summary, barring orders are meant to be reserved for the most extreme cases, but is often applied to fathers who are seeking a reasonable level of contact with their own children. If you find yourself under a barring order, it is vital that you take action by changing your situation to nullify the original reasons for the order. This would give you the best chance to challenge the order and get a better result from the court.

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My husband left me and our four children for his mistress and last week he took the childrento cinema with his mistress and her children and didn't tell me, do i have right to stop him taking them to see her
Eff - 29-Jan-16 @ 9:26 PM
Hi my ex moved closer to me after living away 5 years and we eventually spit 1 year ago because I couldn't get over his affair now one year on he's moved closer to me with the women he had the affair with and is wanting to have his 2 kids more and be more flexible on his time with his kids and is now wanting to take me to mediation I've never stopped him having his kids 2 days a week but he is now wanting to change his days to suit him and his job and is also wanting to have them around the women who spit my family up from day one and I don't know my rights we were never married but his name is on the kids birth certificates he's said that I'll be getting a letter in the post from the mediation and if I don't comply then he will automatically get what he's asking for
hayley - 19-Jul-15 @ 10:25 PM
@Roy - A barring order is made in circumstances where a person is seen to be making both numerous and unreasonable family law application - it is difficult to give any advice on this situation, when the court is making the decisions. Any re-application will only aggravate them further and you could end up losing other rights. It's a tricky one for you.
Barry - 19-Nov-14 @ 12:55 PM
Hi, I've found myself with 91(14) baring order on me for two years. I was at court yesterday as litegent in front of magistrates. Is there any advice you could give me on this? The history is as follows, in 2010 I applied for a contact order for my daughter, I had Monday Wednesday friday and Saturday, in 2011 I applied for shared residence which was granted "by concent" with this order I saw my daughter every day of the week bar Tuesday with two overnight stays. Wednesday and Saturday nights each week. I had 104 nights a week. The shared residence order 2011 allowed me to take my child to school every Thursday which was in effect one year and a half until April 1st 2014. Foolishly I applied to vary the order to allow mother a weekend on alternate basic as I had every weekend within the shared residence order. The court made me attend the caring dads programme? The communication between me and mum was non existent and the cout sought I go on the course? The course ended and I then went back to court to find the Watford court judge taking my one day a week of taking my daughter to school away? The app to vary I entered was solely to alternate weekend staying contact so mum got to spend time and do things with our child. I I then entered another app to court for the new order April 1st 2014 To be set aside and allow my child to continue the stable routine she had known for a period long enought to call stable routine a year and a half. I was at court yesterday and the mum had now applied to 91(14) bar me which the court passed and I'm now barred for 2 years. At the start of my break up I had legal aid then the threshhold to get it changed and I lost legal aid. As litegent I didn't know the way of court and applications, I have entered 14 apps to court for very real issues but the court didn't listen to me and bared me for 2 years. I now find my 6 year old daughter very upset And I don't know what reason to tell her when she asks me as to why I'm not taking her to school anymore. I do have a lot of time with my daughter in the holidays but that's nit good enough, I'm a proud father who wants nothing more than to take my daughter to school as she has known and cherished for the last year and a half from reception class. I entered an app to vary the shared residence order and I've found myself bared from making Further real issue applications and my daughter is upset I don't take her to school. Mother had told court in her statement that my daughter was tired and always late for school only when I took her? This was not true and the school produced a letter for court explaining this was not true also but yet the court bared me from making further app and I feel as litegent the court laughed at me and went with what mothers barrister said. Please advise me, can I appeal this 91(14) order.
Roy - 18-Nov-14 @ 7:07 PM
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