“Lawfare” in the family court - Is this the beginning of the end?

The Court of Appeal recognises that court proceedings can be used as a weapon of coercive control by parents

13 April 2022

Ready to find out where you stand? Click here to get started

The Children Act 1989 (the “Act”) is a significant piece of legislation in the history of family law. It brought together existing legislation and strengthened protections for children, placing a greater emphasis on their needs and interests.

Parents, guardians and those with parental responsibility can apply to the court for a child arrangements order, a prohibited steps order or a specific issue order under section 8 of the Act, without permission from the court. 

Section 8 orders explained


What is a child arrangements order?

An order setting out who a child lives with, spends time with and/or who they have other contact with.

What is a prohibited steps order?

An order preventing a person (usually a parent) from making certain decisions or doing certain activities in relation to a child. For example, an order preventing a parent from taking a child out of the country.

What is a specific issue order?

An order resolving a dispute about the child’s upbringing. For example, deciding the school a child will attend.

 

If one parent feels the order is not being followed, they can ask the court to enforce the terms of the order under section 11J of the Act.

How do section 11J enforcement orders work?

If a court is satisfied that a person has failed to comply with a child arrangements order without a reasonable excuse for doing so, the court can make an order enforcing the child arrangements. The court has a number of enforcement options available to it including the imposition of a fine or ordering a committal to prison. Sometimes, when an enforcement application comes before the court, the judge will decide that the arrangements are no longer appropriate and can vary the child arrangements order.

 

The Act gives parents and guardians flexibility and freedom to make court applications when they need to in relation to their children. For the most part, this is respected and the court process is used as a last resort. However, there are occasions where parents make repeated unnecessary applications to the courts, causing harm to the children and the other party.

This is why the Act includes an important safeguard to protect children from excessive, meritless litigation. Section 91(14) of the Act enables the court to order that further applications in relation to a child or children cannot be made without the permission of the court. This does not prevent the parent in question from ever making an application again; instead it imposes a filter on that parent’s court applications since a future judge can, of course, grant permission to allow applications through if the parent has an arguable case with some chance of success . If a party is successful in seeking this order, it will usually be for a finite period of time.

Section 91(14) was considered in the 1999 landmark case Re P (A Minor) (Residence Order: Child's Welfare) . Butler-Sloss LJ set out guidelines for how section 91(14) should be interpreted. The guidelines set out that section 91(14) orders should be the exception, not the rule and that they must be used sparingly and with great care. Butler-Sloss LJ also stated that section 91(14) was a weapon of last resort. This set an extremely high bar for a section 91(14) order to be made, making them unusual.

The judgment in Re P was written over 20 years ago. Over the last two decades, society’s understanding of domestic abuse has changed drastically. Previous definitions of domestic abuse focused on bodily harm. In a 2021 decision, Re H-N (Children) (Domestic Abuse: Finding of Fact Hearings) , the court recognised that it is possible to be a victim of abuse without ever sustaining a physical injury. In Re H-N, the court also recognised the importance of the definition of domestic abuse in Practice Direction 12J of the Family Procedure Rules, which includes a pattern of incidents that alone would not be seen as serious, but together amount to abusive behaviour.

How does Practice Direction 12J of the Family Procedure Rules define domestic abuse?

Domestic abuse includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse.

What is coercive behaviour?

An act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim.

What is controlling behaviour?

An act or pattern of acts designed to make a person subordinate or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.

 

In the recent decision of Re A (A Child) (supervised contact) (s91(14) Children Act 1989 orders), the Court of Appeal considered the Re P guidelines, taking into account the evolution in our understanding of domestic abuse.

In Re A, King LJ recognised the high bar that the Re P guidelines set, stating that the guidelines led to “an understandable, but perhaps misplaced, reluctance for judges to make orders under s91(14), save for in the most egregious cases”.

King LJ went on to reframe the Re P guidelines, stating:

“In my judgment in many cases, but particularly in those cases where the judge forms the view that the type of behaviour indulged in by one of the parents amounts to 'lawfare', that is to say the use of the court proceedings as a weapon of conflict, the court may feel significantly less reluctance than has been the case hitherto, before stepping in to provide by the making of an order under s91(14), protection for a parent from what is in effect, a form of coercive control on their former partner's part.

The guidelines in Re P should now be applied with the above matters in mind and in my judgment the prolific use of social media and emails in the modern world may well mean that orders made under s91(14) need to be used more often in those cases where the litigation in question is causing either directly or indirectly, real harm.” (emphasis added)

King LJ’s judgment marks a line in the sand; it signals that, in the future, the courts will be more willing to step in to protect a party who is suffering harm from being the subject of ‘lawfare’. It is clear now that using court proceedings as a weapon of conflict is a form of coercive control. This is a welcome shift and can be seen as a step towards the courts reflecting society’s deeper understanding of domestic abuse and the harm it causes.

Upcoming changes with the Domestic Abuse Act 2021

In 2020, a report on how the Family Court addresses cases involving domestic abuse concluded that the threshold for making section 91(14) orders was too high and that they were not being used often enough to stop parents from using court applications as a means of abuse. The authors of the report recommended that section 91(14) be amended to remove the exceptionality requirement created by Re P.

As a result of this, section 67 of the Domestic Abuse Act 2021 will add a new clause to section 91(14) of the Act when it comes into force. The new clause, section 91A of the Act, states that section 91(14) orders can be made where proceedings are putting parents and/or children at risk of harm. The new clause also sets out what a court should consider when faced with an application for permission from a parent subject to a section 91(14) order. The court must look at whether there has been a material change in circumstances since the order was made.

Although the new clause has not yet come into force, it is hoped that it will have a positive impact on the prevalence of section 91(14) orders in conjunction with Re A.  

How will section 91(14) be used in the future?

While it is clear that section 91(14) covers section 8 applications, one interesting question that arises is whether section 91(14) can also cover enforcement applications (see section 11J explainer above). Section 91(14) states that it may include “an order under this Act of any specified kind”. While there is not yet any case law on this point, it is arguable that section 11J orders could fall within this definition. This would be a very rare type of order as it is likely that the court would only be willing to curtail a parent’s ability to apply to enforce an order should they make repeated attempts to use enforcement provisions to vary existing orders and continue litigation through the ‘backdoor’.

While it remains to be seen how common section 91(14) orders will become following Re A and the introduction of section 91A of the Act, both developments represent a necessary advancement towards the court protecting vulnerable parties from ex-partners who seek to use the court process as a form of coercive control.

FURTHER INFORMATION

Should you have any questions about the issues covered in this blog, please contact Imogen Roberts or a member of our Public Law team.

 

ABOUT THE AUTHORS

Imogen Roberts is a trainee solicitor in Kingsley Napley’s Public Law team. Imogen joined Kingsley Napley in 2020, having worked as a Senior Caseworker at Resolve West (a charity specialising in restorative justice). Imogen trained as a restorative justice facilitator and mediated conversations between victims and perpetrators of serious violent and sexual assaults. Imogen also worked at the Personal Support Unit, assisting litigants in person at court.

 

Share insightLinkedIn Twitter Facebook Email to a friend Print

Email this page to a friend

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

Leave a comment

You may also be interested in:

Ready to find out where you stand?

Our online systems allow you to get started anywhere, any time and you can save your progress.

Click here to get started

Skip to content Home About Us Insights Services Contact Accessibility