“Overriding all else, as provided by section 1 subsection 1 of the Children Act 1989 , the welfare of the child is a paramount consideration, and the Court is concerned with the interests of the parents only as far as they bear on the welfare of the child. It is almost always in the interests of children whose parents are separated that they should have contact with the parent with whom they are not living. However, cases do unhappily and infrequently occur in which a court is compelled to conclude that in the existing circumstances, an order for immediate face to face contact should not be directed because to do so would be injurious to the welfare of the child. But in those cases, it is ordinarily highly desirable that there should be indirect contact so that the child or children grow up knowing of the loving interest of the absent parent with whom in due course direct contact could be established.”
“Contact between a parent and a child is a fundamental element of family life and almost always in the interests of the child. Contact between a parent and child should only be terminated in exceptional circumstances when there were cogent reasons for doing so and where there is no alternative and only when it will be detrimental to a child’s welfare. There is a positive obligation to take measures to maintain or to restore contact. The Judge must consider all available alternatives. Contact can be stopped only as a last resort and only once it has become clear that the child does not benefit from continuing the attempt. The Court has to take a medium- and long-term view and must not accord excessive weight to what appears likely to be short term or transient problems. The key question is whether all necessary steps have been taken to facilitate contact as can reasonably be demanded in the circumstance of the particular case, at the end of the day, the child’s welfare is paramount, and the child’s interests must have precedence over any other consideration.”
“The Court should consider whether the fundamental need of any child to have an enduring relationship with both parents is outweighed by the depth of harm to the particular child that might thereby be caused by the Child Arrangements Order.”
“Section 91(14) should be read in conjunction with section 1 subsection 1 which makes the welfare of the child the Court’s paramount consideration. The power to restrict applications to the Court is discretionary and the court must weigh in the balance all the relevant circumstances. An important consideration is that to impose a restriction is a statutory intrusion into the right of a party to bring proceedings before the court and to be heard in matters affecting their children. The power is therefore to be used with great care and sparingly, the exception and not the rule. [Although this now needs to be revisited in light of further developments.] It is generally to be seen as a useful weapon of last resort in cases of repeated and unreasonable applications. However, in suitable circumstances and on clear evidence, a court may impose the restriction in cases where the welfare of the children requires it, although there is no past history of making unreasonable applications. In such case, the Court will need to be satisfied first that the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the Court and the all too common situation where there is animosity between the adults in dispute, and secondly, that there is a serious risk that, without the imposition of the restriction, the children or the mother will be subject to unacceptable strain. The Court may impose the restriction on making applications in the absence of a request from any of the parties, subject, of course, to the rules of natural justice such as an opportunity for the parties to be heard on the point. A restriction may be imposed with or without limitation of time.” “The degree of restriction should be proportionate to the harm it is intended to avoid. Therefore, the Court imposing the restriction should carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained and the duration of the order. It would be undesirable in other than the most exceptional cases to make the order without notice.” [Although this now needs to be revisited in light of further developments.] A restriction may be imposed with or without limitation of time.”
“The provisions within section 91A [as provided for in the Domestic Abuse Act] are transformative. Itprovides a powerful tool with which Judges can protect both children and the parent with whom they live, from corrosive, demoralising and controlling applications which have an insidious impact on their general welfare and wellbeing and can cause real emotional harm. This amended provision strikes me as properly recognising the very significant toll protracted litigation can take on children and individuals who may already have become vulnerable, for a variety of reasons. It also dovetails with our enhanced understanding of the nature of controlling and coercive behaviour. When all other avenues are lost, too often the Court process becomes the only weapon available. Lawyers and Judges must be assiduous to identify when this occurs, in order to ensure that the Court is not manipulated into becoming a source of harm but a guarantee of protection.”
“While such an order may be the exception and not the rule, it does not follow that the case or its circumstances must somehow be adjudged to be exceptional before such an order could be made. It represents a protective filter, not a bar, and there is considerable scope for its use in appropriate cases. Whether to make an order is a matter for the Court’s discretion. There are many and varied circumstances in which it may be appropriate to make such an order. It is not a necessary prerequisite for there to be multiple applications. It includes cases in which the Court considers that an application would put the child concerned, or another individual, at risk of harm without the need to find the risk to be serious or the likely harm to be significant or serious. The ReP guidelines continue to apply. If the Court decides to make an order, the Court must consider its duration, as to which, any term imposed should be proportionate to the harm the Court is seeking to avoid, and in relation to which decision the court must explain its reasons, whether it should apply to all or certain types of application under the Children Act, whether service of any subsequent application for leave should be prohibited pending initial judicial determination of the application. In all of this, the welfare of the child is paramount. That said, any interference with a parent’s otherwise unfettered right of access to the court, including the duration of any such prohibition pending permission, must be proportionate to the harm the court is seeking to avoid.”
“Section 91(14) order is a filter, not a bar. If the father can show the Judge that there is a real change of circumstances and a change in his mind set, then he will be permitted to make a fresh application.”