What Are Barring Orders?
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 LawBarring 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 OrderOnce 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.
PermissionAfter 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)  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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