Stop right now thank you very much
- AuthorKaren Johnson
Separation can be messy. It raises various issues such as children, finances, where you both will live etc. All of these issues need to be resolved as soon as possible, and yet, are hugely emotive matters which need to be addressed with sensitivity, and at a time when both parties are usually coming to terms themselves with the breakdown of the relationship itself.
Court should always be a last resort and we encourage our clients to consider alternative processes such as mediation or negotiation. However, sometimes this is not possible and an application must be made to the court. In those circumstances, if an agreement still cannot be reached, a judge will make a decision to determine the issue in dispute.
Some cases will require multiple applications to the court. This might include divorce, finances, child arrangements and applications for a non-molestation order or occupation orders to protect someone from domestic abuse. In the vast majority of those cases, this flurry of litigation is a one off and having had the initial issues determined, the parties are able to move forwards.
Sometimes, and particularly if there are children, there may be further issues down the line when the children’s needs change and the parents have a difference of opinion as to how those needs should be met. Once again, attempts should be made to reach an agreement outside of the court process, but if that is not possible then an application can be made to the court.
Very occasionally, however, we are faced with a situation where people can become locked in a seemingly endless cycle of litigation. This is by repeated applications being made to the court which can be completely out of proportion to the issue in dispute, and entirely without any chance of success. For the person on the receiving end of those applications, the impact must not be underestimated. They will have the pressure of dealing with the financial costs involved with defending repeated applications but also the distress and unacceptable strain that comes with this. If children are involved, such repeated applications are also likely to impact the children both directly and indirectly due to the pressures that are being placed upon their primary carer. In these situations, the court does have a number of options at its disposal to break the cycle.
S91(14) of the Children Act 1989 gives the court the power on making a final order in an application so that a person cannot make a further application of a particular kind without the court’s permission.
It is important to appreciate that this would be considered as a weapon of last resort and usually in the face of repeated unreasonable applications. The exercise of the power is discretionary, and the court must balance a person’s right to make applications to the court against all the other circumstances, of which the welfare of the child is given paramount consideration. The restriction can last for a period of time or be indefinite, but in every case should be proportionate to the harm that it is intended to avoid.
In situations which involve repeated and unreasonable applications, the court also has the ability to not only use their case management powers to strike out the claims as being without merit, but when doing so must also consider whether to impose a Civil Restraint Order. This may be a Limited Civil Restraint Order, an Extended Civil Restraint Order or a General Civil Restraint Order.
A Limited Civil Restraint Order can be made if there have been two or more applications which were considered totally without merit. The effect of the order is to prevent the person from making further applications in the same proceedings, without the permission of a specified judge.
An Extended Civil Restraint Order is available where a person has persistently made applications that are considered to be without merit. This prevents a person making applications in any court concerning any matter involving, relating to, touching upon or leading to the proceedings in which the order is made, without the permission of a specified judge for a period not exceeding two years.
A General Civil Restraint Order is available where a person has persistently made applications that are considered without merit, and an Extended Civil Restraint Order is considered to provide insufficient protection. A General Civil Restraint Order prevents a person from making any application in any court, without the permission of a specified judge for a period not exceeding two years.
In addition to the above, S42 of the Senior Courts Act 1981 allows the High Court, on an application by the Attorney General, to make a Civil Proceedings Order, Criminal Proceedings Order or All Proceedings Order which prevents a person making applications without the permission of the High Court.
Whether you are the person facing repeated unreasonable applications/allegations, or facing allegations that your position or application is without merit, legal advice from a specialist and qualified solicitor is invaluable. We can offer advice as to how the law applies to your circumstances, the likely outcome if an application was made to the court and represent you in negotiations, protecting your best interests with any application made to the court.
For more information in relation to this issue or to discuss how we can help you, please do not hesitate to contact our specialist divorce and separation lawyers. We offer a free, no obligation 15 minute chat. I am based in our Colchester office and can be contacted on 01206 217305, email@example.com, or alternatively you can complete our online enquiry form.
Karen Johnson is an accredited specialist family solicitor with over 16 years’ experience in assisting clients address issues arising as a result of relationship breakdown.