To Bar or Not to Bar… Changes to the Children’s Act s.91(14)

Posted: 23 August 2022

What is a “Barring Order” in the Children’s Act?

Barring Orders can be made by the Family Court, within Children Act Proceedings, in order to stop applications being brought to Court in the future. Bringing further applications requires permission of the court during the life of the bar; they have a life of 2 to 5 years. It would be appropriate to make these Orders in a number of situations where it seems that one of the parties keeps bringing applications as a form of harassment against the other party. It is a tactic sometimes employed by abusive ex-partners as a form of continuing control.  When these orders are made there is usually an existing history of vexatious or otherwise unnecessary applications being brought before the court. The courts have made it clear that this power must be exercised with great care and sparingly. If the party would like to bring a legitimate application following a Barring Order, they can seek permission of the court to do so.  However, you will be well advised to seek specialist legal advice before doing so.

Changes to the Law – Domestic Abuse Act 2021 amendment

The Domestic Abuse Act 2021 has amended Section 91(14), s.91(14), of the Children’s Act, by inserting a further provision; Section 91A. The change establishes a new, lower, statutory threshold to be met before the Court makes a Barring Order. In the event that the court believes that further applications may create a risk of harm to the child or another ‘relevant individual’, they can make a barring order. In the context of this section, another relevant individual would be a victim of domestic abuse.

Why is the Section 91 (14) change important?

These changes are important because it means the court does not need to wait for a history of nuisance applications to protect a vulnerable party. Technically this was already possible under the case law, however barring orders have historically been successfully appealed. The change in statutory law provides clarity, and it is hoped it will inspire more of these applications to be made and encourage judges to grant such orders. With more clarity available, it is hoped barring orders will be less open to challenge and reassure judges that they are within the law when they make s.91(14) orders.

How can applications be brought when a s.91(14) order is in place?

For a party to make an application for permission where a Barring Order is in place, the court will look at the circumstances as they stand. Previously (in Re P) the applicant would have had to “persuade the judge he has an arguable case with some chance of success.” Now the law has been clarified that judges will be looking for a substantial change of circumstances since the previous order was made. In cases where the circumstances are relatively unchanged, the court is unlikely to grant leave, and the other party will not have been bothered or affected at all. The change is subtle; however, the effect is that the threshold becomes objective, rather than subjective. Your solicitor can advise you further on bringing such an application, if necessary.

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